Building Interactive Pty Ltd – Visitor Interactive Service Terms
1. Defined terms & interpretation
1.1 Defined terms
In this document:
Additional Service Proposalis defined in clause 8.2.
Additional Services means services outside the then current scope of the services provided by VISITOR under this Agreement, that Client requests VISITOR to provide and VISITOR agrees to provide (for example additional training services or support services required outside of Business Hours) in accordance with clause 8.1.
Administrator means Client’s nominated personnel who is authorised by Client to access and use the Product for the purpose of administering, managing and monitoring Client Data, Users and the use of the Product by Users.
After Hours means any time outside of Business Hours.
Agreement means the Agreement Details together with these Service Terms.
Agreement Details means the section entitled ‘Agreement Details’ in this Agreement.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Banner Advert means an advertisement that is embedded within the Product and is visible to End Users.
Business Day means:
- for receiving a notice under clause 18, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
- for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne.
Business Hoursmeans any time between 9.00am and 5.00pm on a Business Day.
Client means the entity identified as ‘Client’ in the Agreement Details.
Client Data means data, information (including Personal Information) and other materials entered or uploaded by Client or Administrators into the Product.
Commencement Date means the date detailed in Agreement Details, unless a later date is agreed in writing by VISITOR and Client.
Confidential Informationof a Disclosing Party means:
- the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:
- information that is by its nature confidential;
- information that is designated by the
Disclosing Party as confidential; and
- information the Receiving Party knows, or ought to know, is confidential;
- all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
- all copies of the information, notes and other records referred to in paragraphs (a) and (b),
- in the case of VISITOR, includes the
Product (including any data stored in the
Product that is not Client Data); and
- in the case of Client, includes Client Data, but in all cases excludes information that:
- the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
- is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Designated Number of Administrators means the maximum number of Administrators specified in the Agreement Details.
Disclosing Party means a party to this
Agreement who discloses or makes available Confidential Information to the Receiving Party.
Documentation means the manual (currently called the ‘VISITOR training manual’), by contacting VISITOR support and using access credentials provided pursuant to clause 3.1(b), which sets out a description of the Product and instructions for its access and use, and includes changes (including additions) to that documentation.
End User means any person authorised by Client to access and use the Product.
- the Hardware Fees;
- the Setup Fees; and (c) the Subscription Fees, and any other amounts payable to VISITOR under this Agreement, including fees for Additional Services agreed by the parties in accordance with the process set out in clause 8.1 payable as specified by VISITOR to Client from time to time.
Force Majeure Event is defined in clause 16.
Hardware means the hardware specified in the Agreement Details.
Hardware Feemeans the fees payable by
Client for the Hardware as set out in the
Agreement Details or otherwise specified by VISITOR to Client from time to time.
Initial Term is 12 months unless specified in the Agreement Details commencing on the Commencement Date.
Initial Training means the training provided to Supported Administrators which will be available either online or contacting VISITOR’s support and using access credentials provided pursuant to clause 3.1(b).
Insolvency Event means any of the following events:
- a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
- a party ceases to carry on business;
- a party ceases to be able to pay its debts as they become due;
- any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party’s assets, operations or business;
- any step is taken to enter into any arrangement between a party and its creditors; or
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party’s assets or business.
Intellectual Property Rights means all intellectual property rights, including the following rights:
- patents, copyright, rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
- any application or right to apply for registration of any of the rights referred to in paragraph (a); and
- all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world (including Australia), whether or not such rights are registered or capable of being registered.
ISP Services is defined in clause 6.5.
Subscription Period means the Initial Term and all Renewal Terms.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
- whether the information or opinion is true or not; and
- whether the information or opinion is recorded in a material form or not.
Personnel means, in relation to a party, the officers, employees, contractors and agents of that party.
PPSA means the Personal Property Securities Act 2009 (Cth).
Product means the hosted software application provided by VISITOR to the Client under this Agreement that enables Administrators to administer, manage and monitor Client Data, Users and the use of the Product by Users as more particularly described in the Documentation.
Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.
Renewal Term is defined in clause 3.2(b).
Setup Fees means the fees payable by Client for the Setup Services, as set out in the Agreement Details or otherwise specified to Client by VISITOR from time to time.
Setup Services means the setup services described in the Agreement Details.
Subscription Fees means the fees payable by Client for
- the access and usage rights granted in respect of; and
- the provision of Support Services in respect of,
the Product. The Subscription Fees for the Initial Term are set out in the Agreement Details.
Support Enquiry means any call, email or enquiry to use the Support Services.
Support Services means Client support services by telephone or email provided by VISITOR during Business Hours to support Client in the use of the Product.
Supported Administratorsmeans maximum number of Administrators who may make use of Support Services.
Term means the period commencing on the Commencement Date and ending on the effective date of termination of this Agreement under clause 15.
Users means: (a) the Administrators; and (b) the End Users.
VISITOR means Visitor Interactive Pty Ltd,
ABN 73 169 770 003, of 54 Comer Street,
Brighton East, Victoria 3187
In this Agreement, unless otherwise stated, or where the context otherwise requires:
- the singular includes the plural and vice versa, and a gender includes other genders;
- another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- a reference to A$, $A, dollar or $ is to
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
- a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
- if a day on which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed of the event must occur on or by the next Business Day; and
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
Headings are for ease of reference only and do not affect interpretation.
2. Setup Services
Subject to Client’s payment of the Fees in accordance with this Agreement, VISITOR will provide the Setup Services to Client as soon as practicable after the Commencement Date (or at such later date as the parties may agree in writing).
2.2 Information and assistance
- acknowledges that the provision of the Setup Services will require Client to provide VISITOR with certain information and access to Client’s systems, data and Personnel; and
- agrees to promptly provide VISITOR with all such information and access at VISITOR’S request.
3. Use of Product
3.1 Grant of licence
Subject to Client’s payment of the Fees in accordance with this Agreement, VISITOR grants to Client a non-exclusive, nontransferable, revocable licence to allow:
- End User access and use of the Product by entering data into the Product; and
- Administrator access and use of the Product by providing usernames and passwords within the access levels and permissions allowed by the Product from time to time as allocated to each Administrator by VISITOR (as part of the Setup Services) or by an Administrator.
3.2 Licence term
The licence granted to Client under clause 3.1 commences on the Commencement Date and will continue:
- for the Initial Term; and
- automatically for successive 12 month periods thereafter (each a Renewal Term), unless this Agreement is terminated in accordance with clause 15.
4. Usage conditions and responsibility for users
- comply with all reasonable directions issued by VISITOR regarding access to and use of the Product;
- ensure the number of Administrators authorised to access the Product for Client does not exceed 100 Designated
Number of Administrators;
- provide Pin numbers to Administrators who make use of the Support Services to ensure that it does not exceed the specified number of Supported Administrators; and
- ensure that each Administrator who accesses or uses the Product is properly trained in the operation of the Product.
4.2 Access and usage restrictions
Client must not (and must ensure that the Users do not):
- modify, add to, adapt, delete or amend any part of the Product without VISITOR prior written consent;
- sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, encumber, or otherwise distribute all or part of the Product, or any adaptation, modification, translation, localisation, port or derivative of all or part of the Product;
- reverse engineer, disassemble, or decompile any software forming part of the Product, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law; (d) use the Product:
- other than in accordance with this
- for any unlawful purpose; or
- in a manner than contravenes any applicable laws;
- remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the Product;
- (except in respect of Client Data) copy or download, in a systematic manner, any
content, graphics, video, text or animation from the Product, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation (or allow any User to do so); or
- directly or indirectly, introduce or permit the introduction by its Personnel or any User of any virus, worm, trojan or other malicious code into the Product, or in any other manner whatsoever corrupt, degrade or disrupt the operation of the Product.
4.3 Responsibility for Users
- Client must ensure that each Administrator keeps his or her username and password confidential and secure.
- agrees that it will be responsible and liable for the acts and omissions of each User in connection with the Product and this Agreement as if they were Client’s acts and omissions; and
- accepts all liability for any unauthorised use of any username and password issued to any Administrator (other than any unauthorised use resulting from any negligent act or omission legally attributable to VISITOR).
5. Support Services
5.1 Provision of Support Services
Subject to Client’s payment of the Fees in accordance with this Agreement, VISITOR will provide Client with Support Services during the Term. To avoid any doubt, any services outside the scope of the Support Services or Initial Training will constitute Additional Services.
6.1 Purchase of Hardware
Subject to Client’s payment of the Hardware
Fees in accordance with this Agreement, VISITOR will deliver the Hardware (including any related documentation) on the date and at the location specified in the Agreement Details, on the terms and conditions set out in this clause 6.
- VISITOR will not dispatch any Hardware to, or make any Hardware available for collection by, Client until Client has paid the deposit, or any other amount that is first due to be paid (if any), under this Agreement in respect of the Hardware unless agreed otherwise
- Any time for processing of an order or delivery of the Hardware made known to Client is an estimate only.
- Except as required by law (including under any Non-Excludable Condition), VISITOR is not liable for any loss, damage or delay occasioned to Client or its employees, contractors or customers arising from late or nondelivery or late installation of the Hardware.
- Title in all Hardware will pass from VISITOR to Client upon VISITOR receiving full payment of the Hardware Fees by Client under this Agreement.
- Risk of loss or damage to the Hardware from any cause will commence with Client upon delivery under clause 6.2.
- VISITOR will use its reasonable endeavours to provide or obtain from (prior to delivery) manufacturers, suppliers and sub-contractors, for the benefit of Client, all warranties, guarantees or other contractual obligations for the Hardware as are given by manufacturers, suppliers and subcontractors in the ordinary course of business.
- In respect of any Hardware while it remains the property of VISITOR, Client must:
- not dispose of the Hardware or create or allow to be created any mortgage, lien, charge, pledge, claim or other encumbrance or third party interest over or in respect of the Hardware, or agree to do any of those things;
- not (without VISITOR’S prior written consent) supply any of the Hardware to any person outside of its ordinary or usual course of business;
- insure the Hardware for its full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where Client carries out business; and
- not remove, deface or obliterate any identifying plate, mark or number on any of the Hardware.
6.5 Equipment, other hardware and third party services
Client is solely responsible for obtaining and maintaining all equipment, hardware (including the Hardware) and software, and all telecommunications services, required by Client and Users to access and use the Product, including access to an account for the provision of internet services (ISP Services) with an internet service provider.
7.1 Security agreement acknowledgement
Client acknowledges the Agreement constitutes a security agreement for the purposes of the PPSA. A security interest is taken in all
Hardware previously supplied by VISITOR to Client (if any) and all Hardware that may be supplied in the future by VISITOR to Client and any proceeds referable thereto, securing the performance by Client of its obligations to VISITOR under this Agreement or otherwise.
Client must not, without VISITOR’S prior consent, allow:
- the Hardware to become mixed or commingled with any other property;
- the Hardware to become an accession to any other property; or
- any other property to become an accession to the Hardware.
Client consents to VISITOR effecting and maintaining registrations in respect of security interests (including purchase money security interests) on the PPSR (as defined in the PPSA) contemplated by these terms and conditions.
Client must immediately notify VISITOR if any other person attempts to enforce a security interest in the Hardware.
VISITOR will provide notification as soon as possible in the event it becomes aware of a data breach
Client must assist VISITOR to complete the registration of any financing statement in respect of the Hardware, and will do all things and provide all information necessary to enable VISITOR to perfect its security interest in the products and complete any financing change statement.
7.6 Payments received
Unless otherwise agreed, payments received by VISITOR from or on behalf of Client must be applied in accordance with sections 14(6)(c)(i) to (iii) of the PPSA.
To the extent permitted by law, to the extent they otherwise would have applied to the enforcement of a security interest in the Hardware, Client and VISITOR contract out of sections 125, 132(3)(d), 142, 143 and (if permitted by section 115(7)) Part 4.3 (other than sections 123(1), 126, 128, 129(1), 133, 134(1), 136(1) and 136(2)) of the PPSA. Client irrevocably waives any rights under sections 95, 121(4), 130, 132(4) and 135 of the PPSA.
Client agrees that it irrevocably waives any rights it may have to receive a verification statement (as defined in the PPSA) in respect of a security interests in the Hardware.
7.9 No disclosure
Client and VISITOR agree that neither of them will disclose, or authorise the disclosure, to any person of any information of the kind described in section 275(1) of the PPSA, except to the extent (if any) required by law.
8. Additional Services
8.1 Additional Services
Where Client requests in writing that VISITOR provide Additional Services in relation to the Product, VISITOR will consider the Additional
Services requested by Client and will notify Client within a reasonable period of time whether it is willing to provide those Additional Services.
Where VISITOR is willing to provide those Additional Services, the parties will negotiate in good faith to agree a written proposal for the Additional Services. VISITOR will be under no obligation to provide the relevant Additional Services unless a duly authorised representative of each party has signed that proposal.
9. Banner Adverts
If the parties agree in writing, the Product will display Third Party Banner Adverts to Users, on the terms and conditions set out in the Agreement Details.
Client acknowledges and agrees that the Banner Adverts may contain third party content.
VISITOR makes no representations that the content of any Banner Advert is accurate, up-todate or complete. Client must not, and must ensure that Users do not, make any claim or bring any action against VISITOR in relation to any Banner Advert.
9.3 Intellectual Property Rights
10. Client Data
VISITOR agrees that Client (and/or its third party licensors) owns (and will retain) all rights, title and interest (including all Intellectual Property Rights) in Client Data. Client grants to VISITOR a non-exclusive licence to store and use Client Data in the Product (including in encrypted form) and to enable VISITOR to perform its obligations under this Agreement (including to make Client Data accessible on the Product to Administrators).
10.1 Product, Documentation and Banner Adverts
Client agrees that VISITOR (and/or its third party licensors) owns (and will retain) all rights, title and interest (including all Intellectual Property Rights) in the Product, the Hardware, the Documentation and the Banner Adverts.
10.2 Client Details
All Client information is backed up in the cloud on a continual basis subject to Wi-Fi availability and connection to the data hosting facility.
At the end or termination of the agreement all Client information will be returned to the Client and VISITOR will delete all stored information.
11. 1 Invoicing
VISITOR will invoice Client for the Fees as follows:
- Hardware Fees and Setup Fees will be invoiced:
- as set out in the Agreement
- otherwise from time to time as and when additional hardware or setup services are procured by Client; and
- Subscription Fees will, unless otherwise set out in the Agreement Details, be invoiced monthly in advance on the first day of each calendar month.
Client must pay each invoice issued under this Agreement in the manner, and within the time frame, specified in that invoice.
11.2 Fee increases
VISITOR may increase the Subscription Fees by not more than 5% annually by giving not less than 45 days prior written notice to Client. Subscription Fees may change if additional services have been added.
11.3 Interest on late payments
If any amount payable under this Agreement is in arrears for more than thirty (30) days, VISITOR reserves the right to charge interest on such overdue amounts, calculated daily at the Westpac Bank Indicator Rate plus 2% per annum from the due date until the outstanding amount is paid.
12.1 Defined terms
In this clause 12, a word or expression defined in the A New Tax System (Hardware and Services Tax) Act 1999(Cth) has the meaning given to it in that Act.
12.2 GST inclusive amounts
For the purposes of this Agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under or in connection with this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
12.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
12.4 Gross up of consideration
Despite any other provision in this Agreement, if a party (Supply Maker) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
- the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supply Maker, an amount equal to the GST payable by the Supply Maker on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to the Supply Maker by the Recipient without set off, deduction or requirement for demand, at the same time as the
GST exclusive consideration is payable or to be provided.
12.5 Reimbursement (net down)
If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
13. Confidentiality and privacy
13.1 Use of Confidential Information
A Receiving Party may use Confidential Information of the Disclosing Party only for the purposes of this Agreement.
13.2 Disclosure of Confidential Information
- Subject to clause 13.3, a Receiving Party must keep confidential all
Confidential Information of the Disclosing
Party and may only disclose the Confidential Information for the purposes of this Agreement, and then only to those persons who:
- have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
- before disclosure, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this Agreement (a Direction).
- A Receiving Party must ensure that each person to whom it discloses Confidential Information of the Disclosing Party under this clause 13.2 complies with its Direction.
13.3 Disclosure required by law
If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:
- before doing so:
- notify the Disclosing Party; and
- give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
- notify the third person that the information is confidential to the Disclosing Party.
13.4 Compliance with privacy laws
Each party agrees that, to the extent that they come into possession of any Personal Information in the course of exercising their rights or performing their obligations under this Agreement, they will comply with the provisions of the Privacy Act 1988 (Cth).
13.5 Remedy for breach of confidentiality or privacy obligations
Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under this clause 13, and agrees that the Disclosing Party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
14. Exclusion, limitation of liability and indemnity
14.1 No exclusion or limitation
- To the extent that Client acquires goods or services from VISITOR as a consumer within the meaning of the Australian Consumer Law, Client may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
- Nothing in this clause 14 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
- contravene that statute; or
- cause any term of this Agreement to be void, (Nonexcludable Obligation).
- To the extent permitted by law, VISITOR’S liability in respect of Nonexcludable Obligations is limited to:
- the repair or, if necessary, the replacement of, the goods; and
- the supplying again of any services supplied under this Agreement.
14.2 Exclusion of implied obligations and limitation of liability
Except in relation to Non-excludable Obligations:
- all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement; and
- VISITOR’S liability to Client arising directly or indirectly, under or in any way connected with this Agreement or the performance or non-performance of this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
- VISITOR excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other agreement, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against Client in relation to the Product, Hardware, or under or in any way connected with this Agreement; and
- VISITOR’S total aggregate
liability in respect of the Product, Hardware, or under or in any way connected with this Agreement, is otherwise limited to the amounts paid by Client to VISITOR under this Agreement in the 12 months immediately preceding the date on which the claim giving rise to such liability arose.
14.3 No guarantee of access
Except in relation to Non-excludable Obligations, Client acknowledges and agrees that VISITOR makes no representations, warranties or guarantees in relation to the availability, continuity, reliability or security of the Product or Hardware (or any services provided in connection with the Product or Hardware). VISITOR will not be liable if the Product or Hardware (or any services provided in connection with the Product or Hardware) are unavailable for any reason, including directly or indirectly as a result of:
- telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
- negligent, malicious or wilful acts or omissions of third parties (including VISITOR’S third party service providers);
- maintenance or repairs carried out by VISITOR or any third party service provider in respect of any of the systems used in connection with the provision of the Product or Hardware;
- services provided by third parties (including ISP Services) ceasing or becoming unavailable; or (e) Force Majeure Events.
Client indemnifies VISITOR against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against VISITOR), that VISITOR may sustain or incur as a result, whether directly or indirectly, of any claim by any person against VISITOR in any way related to the Product or the Hardware.
14.5 Client Data
Client acknowledges and agrees that Client is solely responsible for the accuracy and completeness of Client Data.
15.1 Termination without cause
- Either party may terminate this Agreement without cause by giving not less than [thirty (30)] days notice prior to the expiry of: (i) the Initial Term; and (ii) any Renewal Term.
- To avoid doubt, if neither party gives notice of termination within the timeframe specified in paragraph (a) above, then this Agreement will automatically renew:
- at the expiry of the Initial Term – for the Renewal Term; and
- at the expiry of any Renewal Term – for a further Renewal Term, and Client will be required to pay all applicable Fees for that Renewal Term in accordance with clause 11.
15.2 Termination for cause
Either party may terminate this Agreement immediately by notice in writing if the other party:
- breaches any term of this Agreement that is not capable of remedy;
- breaches any term of this Agreement that is capable of remedy and fails to rectify that breach within fourteen (14) days of receiving a notice from the other party requiring it to do so; or (c) suffers an Insolvency Event.
15.3 Rights and obligations on expiry or termination
On the date of expiry or effective termination of this Agreement:
- the licence granted underclause 3.1 terminates;
- Client must immediately cease using (and must procure that all of its Users immediately cease using) the Product; and
- Client must within thirty (30) days of such termination send to VISITOR, or otherwise dispose of in accordance with VISITOR’S directions, all of VISITOR’S
Confidential Information relating to the Product (including the Documentation) then in Client’s (or its Users’) possession or control.
- Client undertakes to VISITOR that Client will not (either personally or through or on behalf of any other person or entity), during the Restricted Period, be engaged or involved (including indirect or direct engagement or involvement) in any business or activity which is the same as or similar to, or which competes with, the Restricted Business or any material part of the Restricted Business, anywhere in Australia.
- Paragraph (a)is to be construed and has effect as if it were a number of separate paragraphs which result from combining the undertaking in paragraph (a) with each period specified in paragraphs (c)(ii)(A), (c)(ii)(B), (c)(ii)(C), (c)(ii)(D)and (c)(ii)(E).
- In this clause 16:
(i) Restricted Business means VISITOR’S software application business, or any significant part of that business, as it is conducted from time to time, and includes the development, registers that the email has passed the hosting, support and/or internet gateway of the sender’s system distribution of any product that is (and no delivery failure or out of office the same as or similar to the message is received by the sender Product; and within 1 hour of sending).
(ii) Restricted Period means:
(A) the Term of this Agreement and 12 months following the expiry or termination of this Agreement;
(B) the Term of this Agreement and 9 months following the expiry or termination of this Agreement;
(C) the Term of this Agreement and 6 months following the expiry or termination of this Agreement;
(D) the Term of this Agreement and 3 months following the expiry or termination of this Agreement;
(E) the Term of this Agreement.
17. Force majeure
The non-performance or delay in performance by a party of any obligation in this Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses all reasonable endeavours to perform as soon as possible its obligations under this Agreement (including by the use of reasonable workarounds and interim measures). This clause 17 does not apply to any obligation to pay money.
(a) Any notice required or authorised to be given or served on a party under this Agreement must be in writing and delivered personally, by pre-paid registered letter, by facsimile or by email addressed to the relevant party.
(b) Notice will be deemed given on the date of personal delivery; if posted within the three (3) days of mailing; if sent by facsimile on receipt by the sender’s facsimile machine of notification from the receiver’s machine that all pages were successfully transmitted; and if sent by email, when the sender’s system registers that the email has passed the internet gateway of the sender’s system (and no delivery failure or out of office message is received by the sender within 1 hour of sending).
(a) This Agreement may be altered only in writing signed by each party.
(b) Each party must pay its own costs of negotiating, preparing and executing this Agreement.
(c) Client may not assign this Agreement (or any right under it) or purport to novate any of its obligations under this Agreement to another person without the prior written consent of VISITOR.
(d) This Agreement may be executed in counterparts. All executed counterparts constitute one document.
(e) This Agreement is governed by the laws of Victoria, Australia and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of Victoria, Australia.
(f) This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.