Fees and payment terms
Acceptable Use Policy
Intellectual Property Rights
Limitation of liability
1.1 The relationship between Emprevo and Customer in connection with the Emprevo Platform, and any related services is governed by:
- (a) these Terms and Conditions; and
- (b) where the Emprevo Platform is provided to Customer via another platform (such as Apple’s App Store, or Google’s Play Store), that platform provider’s Application End User Licence Agreement (General Conditions), (collectively, this Agreement).
1.2 To the extent there is a conflict between the Terms and Conditions and the General Conditions, these Terms and Conditions prevail to the extent of any inconsistency.
Subject to payment by Customer of the Fees, Emprevo grants to Customer a limited, non-exclusive, non-transferable licence, without the right to sublicense, to access and use the Emprevo Platform in accordance with the terms of this Agreement for the Term, solely for Customer’s own internal business purposes.
This Agreement commences on the Effective Date, and will remain in force until terminated by either party in accordance with this Agreement (Term).
4.1 Customer must:
- (a) promptly provide Emprevo with the Customer Data and any other information as it reasonably requires to fulfil its obligations under this Agreement;
- (b) establish and maintain, at its own expense, all means of telecommunications necessary to gain access to the Emprevo Platform;
- (c) ensure that appropriate data security measures are taken in relation to the Customer Data within its own systems;
- (d) only access the Emprevo Platform using authorised means of access (and then in compliance with Emprevo’s procedures, policies and direction for access) as notified from time to time;
- (e) ensure there is no unauthorised access to the Emprevo Platform;
- (f) not cause harm or damage to the Emprevo Platform;
- (g) not commit, cause or allow any breach (or do anything which might put Emprevo in breach) of any Law using the Emprevo Platform;
- (h) not use the Emprevo Platform to infringe any persons’ rights (including committing defamation or infringing a person’s Intellectual Property Rights) or cause harm to any person;
- (i) not use the Emprevo Platform to harass any person or to cause any person the apprehension of harm;
- (j) ensure all user names and passwords are not shared and, are kept secret and secure, and not subject to misuse;
- (k) notify Emprevo immediately of any unauthorised access, security breach (suspected or otherwise) of the Emprevo Platform, or loss or misuse of confidential password or login details.
4.2 Customer will be solely responsible for the content of all Customer Data. Customer will:
- (a) ensure that the Customer Data will be in a format specified by Emprevo (presently csv / xls format) from time to time, and ready for upload, and otherwise remain fully compatible with the Emprevo Platform requirements;
- (b) be solely responsible for the creation, posting, updating and maintenance of the Customer Data;
- (c) be solely responsible for the accuracy, completeness, timeliness and appropriateness of all Customer Data and all content it uploads to the Emprevo Platform; and
- (d) manage, review, create, delete, edit, maintain, and otherwise control the editorial content of the Customer Data.
4.3 Emprevo is not responsible for reviewing the Customer Data prior to its posting by Customer or Emprevo on the Emprevo Platform. Emprevo will not be responsible for keeping or maintaining a current version of the Customer Data.
4.4 Emprevo reserves the right to remove any Customer Data that is not compatible with the Emprevo Platform or that Emprevo reasonably considers is in breach of these Terms and Conditions. Upon request by Customer, and at the Customer’s sole expense, Emprevo may assist Customer in resolving any compatibility issues on a time and materials basis.
5.1 Emprevo aims to comply with established industry practice in relation to data security, including in relation to regular rotating backups, firewalls, encryption, redundancy, access control, and intrusion detection and prevention.
5.2 Without limiting clause 5.1, Emprevo will ensure that industry standard firewall technology and antivirus/malware programs are implemented and maintained in accordance with the licence or the manufacturer’s recommendations at all times during the Term of this Agreement.
6.1 During the term of this Agreement, Emprevo will take reasonable steps to ensure the availability of the Emprevo Platform.
6.2 Emprevo may provide support in relation to the Emprevo Platform at its absolute discretion.
6.3 When reporting a problem or issue to Emprevo, Customer must use reasonable endeavours and do all things reasonably necessary (as requested by Emprevo) to assist Emprevo in resolving that problem or issue, including executing all necessary documents and updating any electronic systems.
7.1 Customer will pay to Emprevo all Fees due to Emprevo under this Agreement calculated at the rates set out in the Schedule (as updated from time to time by written notice from Emprevo).
7.2 All Fees invoiced by Emprevo to Customer are payable within 7 days of the date of invoice. Customer must not withhold any amount invoiced or fail to pay the full amount specified in the invoice without a genuine reason for doing so and acting in good faith.
7.3 If all or any amount specified in an invoice is in good faith disputed by Customer, Customer must provide Emprevo with a reasonably detailed written explanation of the grounds on which the amount is disputed within 7 days from receipt of that invoice. If Customer fails to dispute an invoice within 7 days, the invoice will be deemed to have been accepted by Customer and is payable in full.
7.4 Where Emprevo accepts the written explanation of the grounds on which the payment amount is disputed, Emprevo will re-issue the invoice together with an adjustment note for the Fees agreed to be paid. In any other circumstances where agreement is not reached, either party may refer the dispute to dispute resolution under clause 17.
7.5 A late payment fee may be charged by Emprevo in relation to any Fees which remain unpaid by Customer beyond the due date for payment, at the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Vic) plus 2% on any amount overdue from the due date until the date payment is made.
7.6 Customer will be liable for all costs of collection of such undisputed, overdue amounts including all court costs and solicitor’s fees incurred by Emprevo.
7.7 Customer will pay any sales, value-added or other similar taxes imposed by applicable Law that Emprevo must pay based on the services provided under this Agreement, except for taxes based on Emprevo’s income.
8.1 In accessing and using the Emprevo Platform, or using any Service, Customer will at all times adhere to all applicable Laws, rules and regulations and to Emprevo’s then current Acceptable Use Policy. Any breach of the Acceptable Use Policy by Customer will entitle Emprevo to elect to terminate this Agreement, without notice to Customer.
8.2 Emprevo may inspect the Customer Data to confirm that Customer is complying with this Agreement and the Acceptable Use Policy, and may investigate any alleged or suspected violation of this Agreement or of Emprevo’s policies, or any third party complaints.
8.3 In the event that Emprevo determines in its sole and reasonable discretion that any Customer Data or conduct or actions of Customer (including its employees and users) are obscene, defamatory, unlawful, potentially infringing or otherwise violate this Agreement, the Acceptable Use Policy, or other applicable policy, Emprevo may take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, its other customers and/or third parties. Such corrective action includes, but is not limited to:
- (a) issuing a warning;
- (b) immediately suspending or terminating the Services or Customer’s access to or use of the Emprevo Platform;
- (c) restricting or prohibiting access to any Customer Data that is non-compliant or otherwise violates this Agreement or applicable policy; and/or
- (d) suspending, restricting or terminating access to the Emprevo Platform or the Services or access by any of the Customer’s personnel.
In the event Emprevo takes corrective action, Emprevo will not refund any Fees paid notwithstanding such corrective action. Without limiting the foregoing, Emprevo may terminate the Services for repeated violations of Emprevo’s Acceptable Use Policy.
8.4 Customer agrees that Emprevo is not responsible for checking the Customer Data, whether for accuracy, completeness, compliance or otherwise.
8.5 Emprevo is not responsible or liable for any defamatory or illegal content or any content in the Customer Data contrary to Emprevo’s Acceptable Use Policy.
9.1 The parties will, in performing their respective obligations under this Agreement, comply with all applicable Privacy Laws, and neither party will put the other in breach of any such Privacy Laws.
9.2 Customer will:
- (a) ensure that Customer is entitled to transfer the relevant Personal Information to Emprevo so that Emprevo may lawfully use, process and transfer the Personal Information in accordance with this Agreement on Customer’s behalf;
- (b) ensure that the relevant third parties have been informed of such use, processing and transfer of the Personal Information for processing as required by all applicable Privacy Laws, (the relevant third parties will be required to provide their consent during the personal activation process); and
- (c) ensure that at all times the Personal Information contained in the Customer Data is accurate, complete and up to date.
9.3 The provisions of this clause 9 will survive termination or expiry of this Agreement.
10.1 Customer acknowledges that Emprevo is the sole and exclusive owner of all Intellectual Property Rights in the Emprevo Platform and any Documentation, and undertakes that:
- (a) it will take all commercially reasonable efforts and precautions to prevent unauthorised copying or use of the Emprevo Platform and Documentation;
- (b) it will not allow any third parties to use the Emprevo Platform except with the prior consent of Emprevo;
- (c) it will not use the Emprevo Platform for or on behalf of any other person except with the prior written consent of Emprevo;
- (d) it will not decompile, disassemble, reverse engineer, modify, enhance, change or alter the whole or any part of the Emprevo Platform without the prior written consent of Emprevo; and
- (e) it indemnifies and will keep Emprevo indemnified against any loss or damage (except where and to the extent that such loss or damage is consequential in nature) which Emprevo suffers as a result of any unauthorised use, to the extent such unauthorised use arises from a breach of this Agreement by Customer.
10.2 All Emprevo trademarks and service marks, logos, slogans and taglines are the property of Emprevo or its Affiliates. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.
10.3 Nothing in this Agreement is intended to confer upon either party any Intellectual Property Rights, or any other rights, in any trade marks, business names or logos, of either party or any of its Affiliates, or give either party the right to use the other party’s trademarks or trade names, except for use solely in accordance and as permitted under this Agreement.
10.4 Customer hereby grants Emprevo a limited, non-exclusive, royalty free, non-transferable licence to reproduce, transmit, cache, store, exhibit, publish, display, distribute, perform, and otherwise use the Customer Data solely as necessary to provide the Services for Customer. Customer represents and warrants that it has the rights necessary to grant Emprevo such a licence.
11.1 Neither party is permitted during the Term of this Agreement or at any time thereafter to disclose to any third party any Confidential Information of the other party other than in accordance with clause 11.3 and must use the Confidential Information only for the purposes of performing its obligations under this Agreement.
11.2 Customer acknowledges that all parts of the Emprevo Platform are the Confidential Information of Emprevo and/or its related corporations or licensors, and Customer agrees to treat such information as Emprevo’s Confidential Information in accordance with the terms of this Agreement.
11.3 The parties may disclose Confidential Information to:
- (a) their employees who need to know the same for the purpose of carrying out their obligations under this Agreement (but only to that extent); and
- (b) their independent contractors who:
- (i) need to know the same for the purpose of carrying out their obligations under this Agreement (but only to that extent); and
- (ii) have executed a binding confidentiality agreement on terms no less stringent than those set out in this clause 11, provided that the receiving party will not under any circumstances provide access to such Confidential Information to competitors of Emprevo.
11.4 The restrictions on use and disclosure contained in clauses 11.1 to 11.3 will not apply, or as the case may be, will cease to apply, to Confidential Information:
- (a) which enters the public domain (other than as a result of a breach of this Agreement);
- (b) was in the receiving party’s possession without an obligation of confidentiality prior to its receipt from the Disclosing Party (whether before or after this Agreement was signed);
- (c) is independently developed by the receiving party without the use of Confidential Information; or
- (d) is obtained by the receiving party from a third party under no obligation of confidentiality to the Disclosing Party.
11.5 If a party is required by any applicable Law to disclose the other party’s Confidential Information or to comply with an order of a court of competent jurisdiction or the rules of a securities exchange, the restrictions in clause 11.1 will not restrain the party from complying with that obligation. However, the party must:
- (a) give the other party notice of the details of the proposed disclosure;
- (b) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of the information;
- (c) give any assistance reasonably required by the other party to protect the confidentiality of the information;
- (d) inform the proposed disclosee that the information is Confidential Information of the other party;
- (e) only disclose so much of the Confidential Information as is strictly required to comply with that obligation; and
- (f) in all other respects continue to be bound by clauses 11.1 to 11.3 in respect of that information.
11.6 Each party acknowledges that a breach by it of the restrictions in this clause 11 may cause the other party to suffer loss for which damages may not be adequate compensation and may be difficult to ascertain. Accordingly, the parties each agree that the other party is entitled to seek to restrain, by injunction or any similar remedy, any conduct, actual or threatened, which is in breach of this clause 11.
11.7 The provisions of this clause 11 will survive termination or expiry of this Agreement.
12.1 Each party represents and warrants that it is not subject to any agreement that would prevent it from complying with this Agreement.
12.2 Customer represents, warrants and covenants that:
- (a) the Customer Data will not contain any harmful components, including, but not limited to, viruses, trap doors, hidden sequences, hot keys, or time bombs; and
- (b) Customer will comply with all applicable Laws, rules and regulations (including, but not limited to, decency, privacy and intellectual property laws).
12.3 Emprevo provides the Emprevo Platform “as is” and does not warrant that the operation of the Emprevo Platform will be uninterrupted, continuously accessible, free of harmful components, accurate, error free or fit for any purpose.
13.1 Emprevo will indemnify, defend, and hold Customer, its individual directors, officers, employees and agents, harmless from and against any claims, actions or proceedings, arising out of any third party claim that the Emprevo Platform or the permitted use thereof infringes or violates any third party’s Intellectual Property Rights (IP Claim). If in Emprevo’s reasonable judgment any such IP Claims, or threat of an IP Claim, materially interferes with Customer’s use of the Emprevo Platform, Emprevo will consult with Customer, and Emprevo will have the option, in Emprevo’s sole discretion, to:
- (a) substitute functionally equivalent, non-infringing software or Documentation;
- (b) modify the Emprevo Platform to make it non-infringing; and/or
- (c) obtain for Customer at Emprevo’s expense the right to continue using the infringing software.
13.2 If Emprevo cannot achieve any of the remedies in the preceding clause on a reasonable commercial basis, it may, by written notice, require Customer to cease using the Emprevo Platform.
13.3 Emprevo will have no indemnity obligation for claims of infringement resulting or alleged to result from:
- (a) any combination, operation, or use of any of the Emprevo Platform with any programs or equipment not supplied by Emprevo or not specified in this Agreement for such purpose if in Emprevo’s reasonable judgment such infringement is caused by such use;
- (b) inclusion of, provision of, processing of, access to or use of, or content of Customer Data as contemplated in this Agreement;
- (c) any modification of any part of the Emprevo Platform (or any means of access to it) by a party other than Emprevo if such infringement would have been avoided in the absence of such modifications; or
- (d) the use of the Emprevo Platform in a manner other than for its intended purposes as stated by Emprevo.
13.4 To the extent permitted at Law, this clause 13 states Emprevo’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
13.5 Customer agrees to defend, indemnify and hold harmless Emprevo, its employees and parent corporation from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to lawyers’ fees) arising from:
- (a) Customer’s access to and use of the Emprevo Platform;
- (b) Customer’s breach of any term of this Agreement;
- (c) Customer’s breach of any third party right, including without limitation any Intellectual Property Right or privacy right; or
- (d) any claim arising as a consequence of the inclusion of, provision of, processing of, access to or use of, or content of Customer Data.
This defence and indemnification obligation will survive termination of this Agreement.
13.6 The defence and indemnification obligations provided for in this clause 13 are conditional upon:
- (a) the indemnified party providing the indemnifying party timely notice of any claim or cause of action upon which the indemnified party intends to base a claim of indemnification hereunder;
- (b) the indemnified party providing reasonable assistance and cooperation to enable the indemnifying party to defend the action or claim hereunder; and
- (c) allowing the indemnifying party to control the defence and all related settlement negotiations; provided that the indemnifying party may not settle any claim that results in the indemnified party’s liability and the indemnifying party will be required to consult with the indemnified party during any settlement discussions.
14.1 Subject to clause 14.3 and to the full extent permitted by Law, neither Emprevo, nor its Affiliates, will be liable to Customer (or its Affiliates), (whether in common law, equity, contract, tort (including negligence), breach of statutory obligation or duty, for repudiation, anticipatory breach or otherwise) for:
- (a) any special, exemplary or punitive damages; or
- (b) any Consequential Loss, regardless whether Emprevo has been made aware of the likelihood of such losses.
14.2 Subject to clause 14.3, to the extent permitted by Law, Emprevo’s and if applicable its Affiliates, total cumulative liability to Customer (or its Affiliates), for all claims arising under or in relation to this Agreement, whether in common law, equity, contract, tort (including negligence), breach of statutory obligation or duty, repudiation, anticipatory breach or otherwise), will not exceed when aggregated, the average monthly Fees actually received by Emprevo under this Agreement (if this Agreement has been in force for less than 12 months) or 12 times the monthly average Fees actually received by Emprevo (if this Agreement has been in force for 12 months or longer).
14.3 Nothing in this Agreement will operate so as to exclude, restrict or modify the application of any of the provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent State or Territory legislation (Relevant Legislation), the exercise of a right conferred by such a provision, or any liability of a party for a breach of a condition or warranty implied by such a provision, where the Relevant Legislation would render it void to do so. To the extent that it is able to do so, Emprevo expressly limits its liability for breach of any condition or warranty implied by virtue of any Relevant Legislation to:
- (a) in the case of goods, at Emprevo’s option replacement or repair of the goods or the cost of doing so; and
- (b) in the case of services, at Emprevo’s option, resupply of the services or the cost of doing so.
14.4 The provisions of this clause 14 will survive the termination of the Agreement for any reason.
15.1 Emprevo may suspend the Emprevo Platform or Customer’s access to the Emprevo Platform at any time, by providing Customer notice if:
- (a) Emprevo reasonably believes that Customer or Customer’s personnel are in breach of this Agreement;
- (b) any action taken or required to be taken in accordance with this Agreement contravenes or may contravene any Law; or
- (c) Customer uses the Emprevo Platform in a manner which is illegal, fraudulent or anti-social, as deemed by Emprevo.
15.2 Customer’s obligations to pay Fees will continue despite the suspension.
16.1 In addition to any other rights of termination that each party may have (including the termination rights in clauses 16.2 and 16.3 and any express termination rights contained in other clauses in this Agreement), a party may, by written notice, immediately terminate this Agreement if the other party:
- (a) breaches a material provision in this Agreement and does not remedy the breach within 30 days after being given written notice by the non-breaching party identifying the breach and requiring it to be rectified;
- (b) is the subject of any insolvency or administration process or any administration or insolvency-related proceedings of any kind (whether voluntary or involuntary) including a scheme of arrangement.
16.2 Either party may terminate this Agreement by giving the other party thirty (30) days written notice for any or no reason.
16.3 Emprevo may terminate this Agreement immediately by written notice if Customer fails to pay applicable Fees for the Emprevo Platform within 7 days after Emprevo gives Customer notice of such non-payment.
16.4 Any termination does not relieve Customer from paying any past due amounts and any amounts due to Emprevo up to and including the termination date of this Agreement.
16.5 Customer must cease using the Emprevo Platform immediately after the termination of this Agreement.
16.6 Within thirty (30) days (or earlier upon Emprevo’s reasonable written request) after the effective date of a termination of this Agreement for any reason, Customer will pay Emprevo for all Services performed by Emprevo up to the effective date of such termination and all other amounts owed by Customer to Emprevo under this Agreement.
16.7 When requested in writing by Customer, based upon termination of this Agreement, Emprevo will deliver (within thirty (30) days of receipt of request) electronic files containing all available Customer Data in excel format.
17.1 If at any time a dispute arises out of or in connection with this Agreement, then Emprevo and Customer will have their respective designated representatives meet in good faith with a view to resolving the dispute within a period of fifteen (15) working days from the issue of a written notice of dispute by one party to the other party.
17.2 Should the parties not be able to resolve the dispute within the fifteen (15) working days, then both parties will refer the matter to their own appropriate level of senior executive management respectively for resolution.
17.3 If the relevant senior executive management of Emprevo and Customer are unable to resolve the dispute within a further ten (10) working day period, then the parties will attempt to settle the dispute through discussions between each parties’ respective Chief Executive Officer.
17.4 In the absence of an amicable resolution within fifteen (15) days from the meeting of the respective Chief Executive Officers in accordance with the conditions provided for in this clause 17, the parties agree that the dispute must then be referred to mediation.
17.5 The parties will agree on a suitable person to act as mediator having industry knowledge and expertise to facilitate resolution. Failing agreement on such appointment, either party may apply to the President or other appropriate officer of the Law Institute of Victoria (or equivalent body) to appoint a mediator.
17.6 The dispute for mediation must be heard within 20 Business Days of a mediator being appointed.
17.7 The parties agree to adhere to the procedures set out under this clause 17 before enforcing any other rights permitted by Law in the resolution of any disputes under this Agreement.
17.8 Nothing in this clause 17 will preclude a party from seeking urgent injunctive relief in cases of genuine urgency.
18.1 Change to the Services and terms
- (a) Emprevo reserves the right to change or modify the Services, the Emprevo Platform, the terms of this Agreement (including the Acceptable Use Policy), or any policy or guideline applicable to the Services, at any time in its sole discretion.
- (b) Emprevo will send a notice to Customer of any such changes. Changes to this Agreement or Services will be effective 45 days after the notice is posted. Changes to any policy or guidelines governing the Services, including the Acceptable Use Policy, will be effective upon posting.
- (c) If Customer does not agree to any change to this Agreement, the Services, or any governing policy or guideline, Customer’s sole remedy is to immediately terminate this Agreement pursuant to clause 16 (notwithstanding any notice period). Customer’s continued use of the Services following Emprevo’s posting of any changes to this Agreement, the Services, or any policy or guideline will constitute Customer’s acceptance of such changes or modifications.
Customer agrees to permit Emprevo to make reasonable reference to Customer’s status as a user of the Emprevo Platform, including captioned quotations in product literature or advertisements, websites, articles, press releases, marketing literature, presentations and the like, and occasional use as a reference for potential new users.
18.3 Force Majeure
- (a) Neither party will be responsible for a failure to perform any obligation under this Agreement to the extent that it is caused by a Force Majeure Event, provided that such party has:
- (i) taken all reasonable steps to prevent and avoid the effects of the Force Majeure Event;
- (ii) taken all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable; and
- (iii) on becoming aware of the Force Majeure Event, promptly informed the other party of the Force Majeure Event.
- (b) In the event that the Force Majeure Event continues for more than thirty (30) days starting on the day the Force Majeure Event starts, the unaffected party may terminate that part of the service affected by the Force Majeure Event by not less than ten (10) days’ notice in writing to the affected party.
18.4 Entire Agreement
The entire agreement between Customer and Emprevo with respect to the subject matter is contained in this Agreement. This Agreement supersedes all previous agreements, undertakings, representations, warranties and arrangements oral or written between Customer and Emprevo with respect to the subject matter herein.
Customer may not assign its rights under this Agreement without the prior written consent of Emprevo, which must not be unreasonably withheld.
18.6 Waiver and invalidity
- (a) No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder.
- (b) If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable Law.
- (a) This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same Agreement.
- (b) Signatures transmitted and received via facsimile or other electronic means will be treated as original signatures for all purposes of this Agreement.
- (a) A notice must be in writing and delivered on a Business Day, and be sent by hand, prepaid mail (airmail if overseas) or email. Notices must be addressed to the recipient at the address or email set out in the Schedule or to any other address or email that a party may notify to the other.
- (b) A notice given in accordance with clause 18.8(a) will be treated as having been received:
- (i) on the date of delivery (if sent by hand);
- (ii) 5 Business Day days after posting (if sent by post) or 10 Business Day days after posting (if sent overseas);
- (iii) if sent by email, upon production of a record showing the email was sent in its entirety to the applicable email address (but if the communication is not completed by 5pm on a Business Day, at 9 am on the next Business Day).
18.9 Governing Law and Jurisdiction
- (a) This Agreement is governed by and construed under the law in the State of Victoria.
- (b) The parties submit to the non-exclusive jurisdiction of the courts of Victoria and courts which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
As used in this Agreement, and in addition to any other terms defined in this Agreement, the following terms will have the following meanings:
Acceptable Use Policy means the policy available on Emprevo’s website at www.emprevo.com as may be updated from time to time by Emprevo;
Account means an account relating to any Customer from time to time established for use of the Emprevo Platform;
Affiliate means a related body corporate of an entity (within the meaning in section 50 of the Corporations Act 2001 (Cth));
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the State of Victoria, Australia;
Confidential Information means the information of or relating to a party (the Disclosing Party) or its Affiliates or their respective businesses or affairs (whether or not in a material form and whether or not disclosed or learned prior to the date of this Agreement) which by its nature is confidential, is designated as confidential and/or which the other party (the Recipient) knows or reasonably ought to know is confidential and in Emprevo’s case includes the Documentation and Emprevo’s Intellectual Property Rights;
Consequential Loss means any loss not arising naturally (that is, according to the usual course of things), from the relevant breach, act or omission, as well as indirect or consequential loss, special, incidental, exemplary or punitive damages, economic loss, regulatory fines, loss of use, loss of revenue, damage to reputation or loss of goodwill, loss of profit, loss of anticipated savings or cost of capital, business interruption losses, claims of customers or other third parties for service interruptions or failure of supply, costs of procurement or substitution of goods, technology or services including costs and expenses incurred in connection with labour, overhead, transportation, installation, or removal of equipment or programming or substitute facilities or supply sources, or loss of information or data (including the costs or recovering or reconstructing any lost or corrupted data);
Customer Data means any and all data and information related to the data (including text (whether or not perceptible by users), code, meta tags, graphics, photographs, audio visual elements, music, illustrations, video or other content), Customer domain(s), email, chat room content, bulletin board postings, or any other items or materials of Customer or any third party that are provided or permitted by Customer to reside on the Emprevo Platform;
Documentation means the user documentation and any other operating, training, and reference manuals relating to the use of the Emprevo Platform, as supplied by Emprevo to Customer;
Effective Date means the date on which the last party signs this Agreement;
Emprevo Platform means the proprietary rostering software owned or licenced by Emprevo, including any Version Upgrades and components released by Emprevo for that software;
Fees means the fees specified in Item 2 of the Schedule as varied from time to time;
Force Majeure Event any cause affecting the performance by a party of its obligations under this Agreement arising from acts, events, omissions or non-events beyond its reasonable control, which will be deemed to include riots, war, acts of terrorism, fire, flood, storm or earthquake;
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
Intellectual Property Rights means all intellectual or industrial property, including without limitation any copyright, trade or service mark, patent, Moral Right, registered design, trade secret, logo, know how, rights in relation to inventions, rights in respect of Confidential Information and circuit layout rights;
- (a) the common law and equity;
- (b) any statute, regulation, by-law, ordinance or subordinate legislation;
- (c) any direction issued by a Relevant Authority;
- (d) any rules of a court or tribunal; or
- (e) any licence, permit, authorisation, accreditation, code of practice, code of conduct or other requirement which is enforceable against a party to this Agreement or which is issued under an instrument referred to in paragraph (b) (whether or not issued or enforceable by a Relevant Authority);
Moral Rights means any moral rights including the rights described in Part IX of the Copyright Act 1968 (Cth) (as amended and revised from time to time), or other analogous rights arising under any statute, that exist or that may come to exist anywhere in the world;
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth);
Privacy Laws means:
- (a) the Privacy Act 1988 (Cth); and
- (b) any other statute, regulation or Law in Australia or elsewhere which relates to the protection of Personal Information and which Customer or Emprevo must observe;
Relevant Authority means all Commonwealth, State and local government departments, bodies, instrumentalities and other public authorities which have powers that affect the provision of the Services, and which exercise those powers;
Schedule means Reference Schedule contained in the Customer Licence Agreement;
Services are the services specified in the Schedule together with any additional services which Emprevo provides to Customer from time to time under the Agreement;
Term is defined in clause 3;
Version Upgrade means an updated version (indicated by a higher numerical version number) of the Emprevo Platform with enhancements or additions to the functionality, and/or performance improvements and bug fixes.