Supplier Software Terms
iVvy SUPPLIER SOFTWARE AND MARKETPLACE TERMS
This website is operated by iVvy Pty Ltd ACN 138 782 822 (iVvy) of A6 1 Bellvue Drive,Varsity Lakes, Queensland Australia.
These terms and conditions (Terms) are between iVvy (we, us, or our) and You (Your), an event supplier seeking to utilise the iVvy Supplier Software, and accept Bookings through the iVvy online booking system (Marketplace) and our partner websites. Please read these Terms carefully as it states the terms under which we make our services available to you. The Marketplace is designed to provide information about availability of suppliers, so that bookings can be made through the Marketplace with suppliers (Services).
We reserve the right to replace, change or otherwise modify the Terms without prior notice by posting the revised version of the Terms on the website. By your continued use of Marketplace after that posting you accept of the revised Terms.
- DEFINITIONS AND INTERPRETATION
The following terms have these meanings, unless the context requires otherwise.
Booking means a booking for an Event that is made or taken from an enquiry generated through the iVvy Marketplace, Booking Engine, Events Software or Supplier Software. To avoid doubt a request for quote is not a Booking, an inquiry or request for a quote will only become a Booking once a payment has been received by either You or us in relation to a booking.
Booking Value means the total value of all monies received by You or us for a Booking excluding GST, excluding monies that You must refund as a result of the Booking being cancelled.
Business Day means any day other than Saturday, Sunday and Australian or Queensland State public holidays.
Commencement Date means the date you agree to the Terms.
Content means all the information approved by you to be uploaded to Marketplace in connection with your company to be listed on Marketplace including but not limited to description, availability, price, property specifications and details, trade marks, branding, video, photographs, drawings, plans, Your name and contact details.
Confidential Information means any information or material (including information or material provided to a party by third parties), whether in oral, visual or written form or recorded in any other medium, disclosed by a party to, or observed from a party by, the other party, or which is otherwise acquired by one party directly or indirectly from the other party or generated by a party in accordance with this agreement, which is designated, or treated, by a party as confidential, and includes the Software source code, object code, file layouts and interfaces, and software related documentation and other Documentation, all other Intellectual Property Rights and all confidential discoveries, ideas, trade secrets, know how, concepts, software in various stages of development (including any new releases and or new versions, designs, drawings, specifications, techniques, models, data, source code, object code, file layouts, documentation, diagrams, project plans, flow charts, processes and procedures, new versions and new releases and information pertaining to the business, plans, forecasts, finances and strategies of a party and its clients and suppliers and each of their clients and suppliers.
Customer means any person who makes a Booking.
Documentation means the documentation for and in relation to the Software (including without limitation support documents) to be provided to You by us.
Event means accommodation, catering, a function, meeting, gathering, convention, show, concert or other similar gathering and any other Services offered by You.
Events Software means the iVvy web based software made available to third party event organisers to enable the Event organisers to make Bookings (for the avoidance of doubt this is not a part of the Supplier Software and is separate software provided to Event organisers).
Fee means the fees specified in the Schedule.
Force Majeure Event means, for a party, any occurrence or omission as a direct result of which the party is prevented from or delayed in performing any of its obligations under these Terms (other than the payment of money), and that is beyond the reasonable control of that party, including without limitation forces of nature, industrial action, war, insurrection, terrorism and action or inaction by a government agency.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
iVvy Payment Gateway means the payment processing service that is used to take payments from customers for Bookings made on the Marketplace.
Intellectual Property Rights means all industrial and intellectual property rights world-wide whether protectable by statute, at common law or in equity, and whether or not registered or capable of being registered, including but not limited to:
- the entire copyright throughout the world and any similar rights which may subsist or may hereafter subsist in all works, discoveries, designs, drawings, specifications, records, manuals, models, memoranda, technical data, and in particular the Software, its source code, object code, file layouts and interfaces and the Documentation, and in any other subject matter;
- source code and object code, software or hardware products (whether fully developed or in research and development stage);
- rights in relation to inventions (including all patents and patent applications);
- rights in relation to trade secrets, business concepts and know-how;
- rights in relation to designs (whether or not registrable);
- rights in relation to registered and unregistered trade marks;
Licence Fee means annual fee payable for the licence of the Supplier Software (clause 4.1(1)) and, subject to the Supplier Agreement, Support for the Software.
Marketplace means any forum or facility where we give access to potential Customers to search, book and pay for an Event or similar products and/or Services offered by suppliers who operate businesses similar to You.
Merchant Fee means the fees specified in the accompanying Supplier Agreement.
Online Training means training that is delivered via online webinar software by an iVvy trainer.
Owned IP Rights has the meaning given to it in clause 7(1).
Software means Supplier Software unless otherwise specified.
Support means the support provided in accordance with clause 9.
Taxes means all taxes including, without limitation, excise duties, sales tax, GST, stamp duties, customs duties, payroll taxes, government duties, charges and fees, other than income tax.
Term means the fixed term of the agreement as details on the accompanying Supplier Agreement.
Terms means these Terms which includes the schedules and as amended from time to time.
Third Party means any person or entity, other than us or You, and includes (but is not limited to) any or all of Your associates, suppliers, contractors, sub-contractors, agents and consultants.
Training Resources means the videos and training manual accessible online within the Supplier Software.
Transaction Fee means the percentage fee specified in the Supplier Agreement which is a percentage of the Booking Value.
Supplier Agreement means the agreement between You and iVvy in relation to the use of Marketplace and which incorporates these Terms.
Booking Engine means the software that will be added to Your websites to allow visitors to those websites to see Event availability and pricing, and allow visitors to create a Booking or a request for proposal.
Supplier Software means the software which is to be supplied by us to You, with any customisations and any additional Software items that may be purchased by You or licenced to You during the Term to enable You to see Event availability and pricing, create Bookings and to otherwise facilitate the management of the Bookings. For the avoidance of doubt Supplier Software does not include Events Software.
Website means www.ivvy.com.au
- Headings are for convenience only and do not affect the interpretation or construction of this agreement.
- Nothing in these Terms is to be interpreted against a party solely on the ground that the party put forward these Terms or any party of it.
- The following rules apply to these Terms unless the context requires otherwise:
- words in the singular include the plural and vice versa;
- a gender includes all genders;
- a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible form but excludes any communication using email;
- a reference to "dollar" or "$" means a reference to Australian dollars;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
- a reference to a year is a reference to each successive period of twelve months, commencing on the Commencement Date;
- a reference to a month is a reference to each successive month, commencing on the Commencement Date; and
- the meaning of general words is not limited by specific examples introduced by 'including' or similar expressions.
These Terms will continue for the Term, and then until the agreement is terminated.
- Appearance in Marketplace
- We may remove your company from Marketplace if:
- we consider that you are in breach of these Terms or while we investigate a suspected breach of these Terms; or
- you do not place all of your bookings into the Supplier Software so that we can determine your availabilty; or
- you do not add appropriate images and text to your Content; or
- you regularly cancel Bookings,
- you regularly don’t respond to requests for proposals within 2 Business Days
- We may temporarily remove your company from Marketplace if required for technical reasons, systems maintenance or by law.
- You may request us to temporarily remove your company from Marketplace if required for technical reasons, systems maintenance or by law.
- You agree and acknowledge that our role is providing a service of publication and dissemination of marketing information online to enable Bookings to be made for Event suppliers
- We will provide you with Services that allow you to list your company on Marketplace and licence you the Supplier Software so that you can maintain your profile on Marketplace and accept online Bookings.
- We will provide you with a web-based account ("Account") through which you maintain your profile on Marketplace including providing accurate and up to date material on your company.
- We will provide training in the use of the Software at your cost as set out in the Supplier Agreement.
- GRANT OF LICENCE
- In return for the payment of the Licence Fee, we grant You a non-exclusive licence to use the Software and Documentation for the Term and the Software is licenced to be used in respect of a particular company.
- You acknowledge that we will continue to add features and be able to change the functionality of the Software over time, and that such updates will be included in the Software.You will not be required to pay any additional amounts by way of licence fee for a new release or additional features or functionality.
- The licence to use the Software and Documentation is not transferable or assignable without our prior written consent.
- The licence to use the Software and Documentation does not authorise, permit or allow You to grant access to the Software and Documentation to any Third Party or to permit or allow a Third Party to use or operate the Software for any reason without our prior written consent.
- YOUR OBLIGATIONS
- You must:
- record (honestly and accurately) the Booking Value within 7 days after the completion of the Booking;
- Comply with all applicable laws, approvals, codes and guidelines in connection with the use of the service, Software, Documentation, Website and Content;
- Comply with the Terms (as amended from time to time);
- Continually update the Content as to availability and provide accurate information at all times as to your service's availability:
- Not upload any Content which is unlawful;
- Bear the costs connected with uploading the Content onto Marketplace;
- Obtain all necessary permissions, consents and approvals required to upload the Content onto Marketplace for use in accordance with the Terms;
- Not engage in fraudulent behaviour, defame any third party, harass any third party or gain unauthorised access to or interfere with any of our or a third party’s online resources or systems in the provision of the Content or use of the Services and/or Website;
- Ensure that the Content does not defame any third party, harass any third party or infringe or breach the rights of any third party (including disclosing any confidential or personal information of a third party without their consent);
- Ensure use of the Content for the purposes of the service will not breach any laws including laws relating to privacy, discrimination, terrorism, hate-based material or weapons of mass destruction;
- Not upload Content which is misleading or deceptive;
- Not swap the Content for one supplier for the Content for another supplier;
- Not use, reproduce or publish any trade marks except by saving or printing out a copy of any pages from the Website as expressly permitted in the Agreement; and
- Not incorrectly categorise Supplier Content.
- CONTENT LICENSE
- To enable us to provide the service, you grant us a non-exclusive, royalty free, worldwide, irrevocable, perpetual licence (with a right to sublicence) to use, commercialise, reproduce, modify, adapt, publish, communicate and broadcast the Content.
- You authorise us to use your logo and/or trademark (Branding) on a nonexclusive basis for the Term without any fee in advertising, promotional documents including websites to indicate that You are a licensed user of the Software and are on Marketplace. To avoid doubt, we may only use Your Branding to indicate that You are a licenced user of the Software and are on Marketplace but may not use your Branding for any other purpose without your prior consent.
- INTELLECTUAL PROPERTY
- We own or have a right to use the Intellectual Property Rights in Marketplace, the Software, Documentation and the Services (but not including the Content other than as set out in this agreement) (Owned IP Rights).
- You agree that you will not do anything that partially or entirely reproduces or exploits or otherwise breaches the Owned IP Rights or any other person's Intellectual Property Rights whether accessible through the Website, use of the service or otherwise.
- You agree that:
- No title in the Owned IP Rights transfers to you;
- You will take all steps as may be reasonably expected by us to protect our Intellectual Property Rights in the Software or the Marketplace; and
- You do not obtain any rights, express or implied, other than those specifically granted by this agreement.
- WEBSITE ACCOUNT
- You must:
- Only create one account per organisation;
- Not create an account for anyone other than yourself;
- Not provide any false information;
- Ensure that the information provided, including Content and contact information, is at all times accurate and up to date;
- Not create a false identity or misrepresent an affiliation with another person or entity; and
- Not provide details (including its password) to any other person or do anything that may impact on security of the service and/or Website.
- The Supplier Agreement sets out the support provided and, where applicable, the cost of support.
- We will use our reasonable commercial endeavours to meet its support obligations provided amounts payable under these Terms are fully paid to date.
- We are not obliged to provide fault rectification or restoration under these Terms where the fault is caused by factors unrelated to the Software as a result of Your use of the Software contrary to our directions or factors outside of our control.
- We will make the Online Training and Training Resources available to you.
- You are responsible for ensuring that all online training is completed to a satisfactory level to use the Software. At your request we may provide training for You on terms set out in the Supplier Agreement.
- Training cancellations within 24 hours of the scheduled training date will attract a 50% cancellation fee of the training fees charged.
- You must pay us the Fees set out in the Supplier Agreement.
- The amounts payable above must be paid to us within 30 days of issue of invoice by us.
- You agree that we shall be entitled to:
- on charge any the Merchant Fees incurred by us in relation to any Bookings through our gateway;
- collect deposits and other payments for online Bookings.
- Fees payable are exclusive of Taxes
All fees, costs and payments invoiced under these Terms are expressed exclusive of any Taxes or duty which may be payable on the invoiced amounts, and any Taxes or duty imposed or payable in relation to such amounts must also be paid in full by You.
- Non-Payment and Interest
If any Fees or other sums payable under this Terms by You (other than those genuinely disputed by You) remain unpaid for more than the times set out in this Terms or otherwise 30 days past the due date, we may suspend performance of all or any of its obligations under this Agreement upon notice to You.
- Deduction of Fees
- You must record (honestly and accurately) the Booking Value.
- Where You collect payments for Bookings you will provide details to us of Booking Value and remit the relevant fees monthly and provide us with a monthly reconciliation f all such payments.
- If we collect further moneys from a Customer we will invoice You for any Transaction Fees and other amounts owing under the agreement in respect of such collected or additional payments and You must pay each invoice within 30 days of the date of the invoice.
- If a Booking is cancelled or You do not receive full payment for a Booking the Transaction Fees and Merchant Fees (if any) remain payable based on the retained Booking Value only. However You will be entitled to a refund of one half of the Transaction Fees relating to that particular Booking. If no payment for the Booking is received by You, then no fees are payable by You
- Disputed Payments
If either party disputes in good faith its obligation to pay part or all of an invoice submitted or other payment due or otherwise payable under this Agreement, then the dispute provisions in these Terms will apply.
- iVvy Payment Gateway
- Where we collect a payment on your behalf for a Booking made on the Marketplace, we will:
- Remit to you the full amount minus any transactions fees for the Booking
- Only pay you on the 7th or next business day of the month for any outstanding payments
- If a client that has made a payment to iVvy and performs a chargeback, iVvy will deduct that chargeback value from any outstanding payments. If there are no outstanding payments, we will deduct the value of the chargeback and a $30 administration fee from you.
- iVvy will add to the value of any payments made through the iVvy Payment Gateway a fee which is set out in the Supplier Agreement.
- If your bookings have more than three chargebacks within a 4-month period, iVvy will retain a minimum of $2000 in its account to cover the value of any potential future chargebacks.
We may use subcontractors for the performance of its obligations. The appointment of any sub-contractor by us does not remove our obligation to perform its obligations under these Terms.
- INTELLECTUAL PROPERTY
- Intellectual Property Rights
You acknowledge that all Intellectual Property Rights in our Confidential Information, the Software and the Documentation, and in any enhancement, modification or customisation of the Software or the Documentation, and in any other material proprietary to us, vest exclusively in us, and that You will not infringe our Intellectual Property Rights, nor seek to exploit or use any such material for Your own purposes other than as set out in these Terms and You acquires no right or interest therein (except for the licence in accordance with this agreement).
You acknowledge that following the expiry of the Term or earlier termination of this agreement:
- You have no right or entitlement to use the Intellectual Property Rights;
- We are not obliged to provide support Services to You with respect to the Software, the Documentation, any other material proprietary to us, and any enhancement, modification or customisation of the Software or the Documentation utilised by or provided to You in connection with this agreement; and
- Your access to the Software will cease immediately and your account will be disabled, and any of your data will be deleted.
- Assignment by You
Where You are given access to the Software or Documentation or any other thing in which we have Intellectual Property Rights, and as a direct result of having such access You author works in which copyright subsists, or develops or creates any inventions or processes (whether capable of registration or not) (collectively “Works”), as legal and or beneficial owner You:
- assign to us all right, title and interest in and all rights subsisting in the Works anywhere in the world, including all Intellectual Property Rights in the Works and all proprietary rights subsisting in any material form of the Works;
- assign to us all copyright subsisting in the Works which is created in the future;
- assign to us the right to claim (and retain) any damages and other remedies (including but not limited to an account of profits) for past infringement of and wrongful interference with the Works which arose before this assignment;
- warrant that You will use reasonable endeavours to procure consents with respect to all moral rights subsisting in the Works, including consent to do all acts or omissions in relation to the Works, whether occurring in the past, present or future, from all employees and contractors involved in the creation of the Works that, but for this consent, would infringe any moral rights or similar rights the employee or contractors may have anywhere in the world; and
- agree to use reasonable endeavours to cause or require all third parties who might otherwise claim any such rights as above to assign those rights to us.
- WARRANTIES, INDEMNITY AND OBLIGATIONS
- Your Warranties
You warrant to us that, for the duration of this agreement that You:
- will operate the Software only in accordance with our operating instructions and the Documentation;
- acknowledge that clause 14 is an essential term of these Terms and You will not infringe our Intellectual Property Rights. You will immediately notify us of any infringement or potential infringement or in the event You know or receive notice which indicates that the Intellectual Property Rights in the Software, Documentation, Marketplace or our Confidential Information have been or may be infringed. You will use Your best endeavours to ensure that none of Your employees, suppliers, sub-licensees or other Third Parties infringe our Intellectual Property Rights, and in the case of an infringement of such rights (without limitation to its other obligations as a consequence) You will assist us in any reasonable way to prosecute the infringer;
- will ensure that our trade marks (whether registered or not) are not misused or infringed, and are protected whenever possible;
- will comply with all reasonable directions from us in relation to the Software, Documentation and Marketplace;
- will wherever practicable provide us with access to any facilities we require to provide the Services contemplated by this agreement, including (without limitation) for example, to assist us to develop the interface required between the Software, Marketplace, Booking Engine, Events Software and any channel manager software that loads Event information onto and that we must connect with in order to access and download that Event information;
- will ensure that any Third Party to whom it has provided any of our Confidential Information or Intellectual Property Rights complies with the terms of these Terms as if it was You, and You will be responsible to us for any act or neglect by such Third Party that would constitute a breach of this agreement; and
- will not use any of our Intellectual Property Rights, or describe any of our products or Services, whether in printed material or on the internet, without our prior written consent.
- iVvy's Warranties
Subject to clause 16, we warrant to You that, for the duration of your agreement with us, we:
- have the right and authority to enter into these Terms and will provide the Software and Documentation to You in accordance with these Terms;
- is or will be the owner of all Intellectual Property Rights in the Software and Documentation or is or will be authorised by the owner of the Software or Documentation (as the case may be) to grant You a licence to use the Software and Documentation on the terms of this agreement.
- LIMITATION OF LIABILITY
- To the maximum extent permitted by law but without limiting Your rights under Australian Consumer Law (including the Competition and Consumer Act 2010 (Cth)):
- The Website and its contents and Services, Marketplace, Software and Documentation are provided without any representations or warranties of any kind, either express or implied including that a potential Customer will be identified in connection with a Booking;
- we are not liable for a delay or failure to perform the Terms due to circumstances beyond our control;
- we disclaim all warranties, express or implied, in connection directly or indirectly with the Website, Services, Software and Documentation including but not limited to warranties in relation to, the appropriateness, quality, authority to provide any supplier or service, the accuracy of listings or the ability of a Customer to complete a Booking;
- We do not represent or warrant that:
- You will have uninterrupted or error-free access to or use of the Website or Software by any method;
- The Website, the Services or Software or any links will be error-free or free from viruses, faults, defects or other harmful elements or that any bugs, viruses, rojan horses or other corrupting programs will not be transmitted to or through the Website or Software by any Third Party;
- That there will not be any unauthorised access to or use of our secure servers which may result in personal or financial information being accessed;
- That Your internet or mobile service provider will allow You or a Customer access to the Website, Marketplace, Software or Services. You are responsible for ensuring its service provider will allow it access to the Services and website and its content and for any costs and service fees associated with the access; or
- That your computer, mobile or other hardware devices will allow you access to the Website, Marketplace, Software or Services. You are responsible for ensuring its devices will allow it access to the Marketplace, Software, Services and Website and its content and for any costs and service fees associated with the access.
- We bear no liability for any problems, technical malfunction, access issues, damage to software or hardware, interrupted service, virus, defect, bugs, Trojan horse in connection with the use of the Website, Marketplace, Software, Services or any information derived from the Website;
- We are not liable for any errors or omissions or accuracy of Content;
- We are not liable for any direct, indirect, exemplary, incidental, special, punitive or consequential liability, loss (including but not limited to loss of data and use of data, income, profit, goodwill, customers, capital or opportunity, loss of anticipated savings or benefits, loss of or damage to property, downtime costs, loss of or damage to reputation and claims of third parties, death, personal injury or any loss, damage or expense) incurred or suffered by You or a third party that arises directly or indirectly out of accessing, use of or reliance on the Website, Marketplace, Software, Documentation or Services or an inability to use it or in any way. This applies even if we have been informed that the liability, loss, damage or expense will or may result.
- Our liability in relation to a claim in connection with the Terms is limited to the Licence Fees you paid us in the previous 12 months.
- Our liability in connection with the Terms is reduced proportionately to the extent You contribute directly or indirectly to the liability.
- REQUIREMENTS OF LAW
- Subject to this clause 17 and 17(2), where legislation implies in to the Terms any guarantee, condition or warranty, and that legislation voids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under such a guarantee, condition or warranty, that guarantee, condition or warranty will be deemed to be included in the Terms.
- Our liability for any breach of a guarantee, condition or warranty included in the Terms as contemplated by clause 17(1) will be limited, where the relevant legislation permits such limitation, to our choice of:
- As regards goods, to replacing the goods , supplying equivalent goods, repairing goods, or paying the cost of replacing or repairing the goods or acquiring equivalent goods; or
- As regards services, to the re-supply of the relevant services or the cost of having the relevant services supplied again.
- If any applicable legislation prohibits the exclusion or limitation of liability by a party in the manner contemplated by this clause 17 with respect to particular loss or damage, then the exclusion or limitation applies to that loss or damage only in the manner, and to the maximum extent, permitted under that legislation (if any).
- Nothing in these Terms or in our dealings with You affects Your or a Customer's statutory rights including those under the Competition and Consumer Act 2010 (Cth). To the extent of any inconsistency between the Terms and the statutory rights under the Competition and Consumer Act 2010 (Cth) will apply.
- You continually indemnify us against any claim or proceeding that is made, threatened or commenced and against any liability, loss, damage or expense (including legal costs on a full indemnity basis) any of them incurs or suffers, as a direct or indirect result of any of the following:
- Your use of and access to the Website, Marketplace, Software, Documentation and Services;
- A breach by You of the Terms;
- In connection with the Content;
- A wilful, unlawful or negligent act or omission by You;
- Violation of any Third Party right or law by You, including (without limitation) any Intellectual Property Rights, defamation or criminal laws; or
- A claim that You through the use of the Website, Marketplace, Software, Documentation or Services caused damage to a Third Party.
- The indemnity in this clause is a continuing obligation and survives termination of the Services in relation to You or removal of Your company for any reason.
- YOUR CONFIDENTIAL INFORMATION
- iVvy's acknowledgments
We acknowledge that:
- in performing its obligations under this agreement, it may generate or acquire Confidential Information proprietary to You;
- Your Confidential Information contains information which is valuable to You; and
- the improper use or disclosure of Your Confidential Information may cause serious loss and damage to You, its respective Customers and suppliers.
- Your acknowledgement
You acknowledge that information relating to your company, services and availability will be publically available on Marketplace.
- Use of Your Confidential Information
Subject to clause 19(2), except as permitted by this agreement, or otherwise with Your prior consent, we will not:
- disclose any of Your Confidential Information to any person, and will hold Your Confidential Information in strict confidence and keep it secret;
- make any use of any of Your Confidential Information except for the purposes of performing its obligations under these Terms; or
- reproduce any of Your Confidential Information except to the extent necessary to fulfil its obligations under these Terms.
- Extent of obligations
The provisions of this clause do not apply to:
- information which at the time of its first disclosure or observation pursuant to these Terms was generally available to the public other than because of a breach of this clause or of any obligation of confidence;
- information after it becomes generally available to the public other than because of a breach of this clause or of any obligation of confidence;
- the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case we will use our best endeavours to notify You that we are required to disclose the Confidential Information prior to such disclosure).
- Period of obligations
Our obligations under this clause survive termination of this agreement.
- IVVY CONFIDENTIAL INFORMATION
- Obligations to keep information confidential
- keep all our Confidential Information strictly confidential and not disclose it to any person or Third Party without our prior written consent. Should we consent to any disclosure of its Confidential Information You must, prior to any disclosure, obtain from the person to whom the Confidential Information will be disclosed, an executed Confidentiality Agreement in such form that we may provide to You;
- only disclose our Confidential Information to those of its officers, employees or contractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;
- put in place and maintain adequate security measures to protect our Confidential Information from unauthorised access or use at least to the same extent that You has for its own Confidential Information;
- only use our Confidential Information for the purpose of performing its obligations or exercising its rights under this agreement;
- on request at any time by us and where practicable, immediately return to us or permanently delete or destroy, as we direct, all copies or records of our Confidential Information in Your possession or control, and provide written confirmation once this has occurred;
- keep these Terms and its terms confidential unless otherwise agreed by the parties.
The provisions of this clause 20 do not apply to:
- information which at the time of its first disclosure or observation pursuant to these Terms was generally available to the public other than because of a breach of this clause or of any obligation of confidence;
- information after it becomes generally available to the public other than because of a breach of this clause or of any obligation of confidence;
- the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case You will use your best endeavours to notify us that it is required to disclose the Confidential Information prior to such disclosure).
- Period of obligations
Your obligations under this clause survive termination of this Agreement.
- Termination by either party
- If a party is in breach of a provision of these Terms, the other party may give written notice to the party in default, specifying the breach and requiring it to be remedied within thirty (30) days of receipt of the notice or a shorter time period if in the circumstances a shorter time period is reasonable.
- If the party in breach fails to remedy the breach within the time limit set in the notice, or where the breach is a material breach incapable of being remedied or where a party has committed the same breach more than twice, then the party that has given notice of the breach may terminate these Terms in its entirety without further notice to the party in breach.
- Steps following Termination
- If notice of termination is given pursuant to any of the preceding clauses, in addition to terminating the agreement and without limiting its other rights:
- we may retain any moneys paid other than those which have been paid in advance for services or products that have not yet been supplied by us in which case monies paid for those services or products must be refunded to You within 14 days of termination and if only part of the services or products have been supplied then a pro-rata amount for the yet to be supplied portion of those services or products must be refunded within 14 days of termination;
- You will become immediately liable to pay the balance (if any) of the Fees and Transaction Fees which accrued and became payable prior to the date of termination;
- Subject to clause 21(3), You will return our Confidential Information (by returning all hard copies and deleting the Confidential Information stored electronic form) and our Documentation.
- we may retake possession of all our property in the possession of You; and
- unless otherwise agreed both parties will be discharged from any further obligations under these Terms from the date of termination except those which by their nature are intended to operate beyond the termination of these Terms.
- Other Rights not affected by Termination
Termination under this clause will be without prejudice to any other rights or remedies to which either party may be entitled at law.
- Software on Termination or Expiry
- On expiry or termination of these Terms Your access to the Software and the Documentation (including all copies of them) will cease one (1) month after the date of expiry or termination. Your account will be disabled and all licenses granted in this agreement will be at an end.
- This clause survives the expiry or termination of this Agreement.
- Surviving obligations
Termination of these Terms does not affect any provisions which are stated, or by their context required, to survive termination.
- FORCE MAJEURE
- Notice and suspension of obligations
- If a party is affected or is likely to be affected by a Force Majeure Event, that party must, as soon as practicable after becoming aware of the Force Majeure Event, give the other party notice of that fact including:
- full particulars of the Force Majeure Event;
- an estimate of its likely duration;
- the obligations affected by the Force Majeure Event and the extent of the effect of the Force Majeure Event on those obligations; and
- the steps taken to rectify the Force Majeure Event.
- The obligations under these Terms of the party giving the notice (except the obligation to pay money) are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
- Effort to overcome
A party claiming a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event as quickly as possible. However, this does not require a party to settle any industrial dispute in any way it does not want to.
If a party's performance of these Terms continues to be affected by a Force Majeure Event for more than 60 days, the other party may terminate these Terms by giving at least 5 Business Days' notice to the other.
- SERVICES SLA
The Service Levels applicable to Marketplace are set out in the Schedule.
If there is a dispute in connection with these Terms, then, within 10 Business Days of one of us giving the other notice of the dispute, responsible officers of each of the parties and You must meet and use all reasonable endeavours acting in good faith to resolve the dispute.
If the dispute is not resolved within 10 Business Days of that meeting then the parties must first refer the dispute to the Managing Director or Chief Executive Officer of each of us, who will attempt to resolve the dispute, and who may (but are not obliged to) agree to submit the dispute to an independent expert acceptable to both parties for determination. The cost of submission to that independent expert will be met equally.
- Decision to be binding
If a dispute is submitted to an independent expert, the parties must comply with all determinations made. Any person appointed to resolve the dispute will sit as an expert and not as an arbitrator and (except for cases of manifest error or fraud) determinations made are not subject to appeal to any court or tribunal. Neither of us will commence court proceedings in relation to a dispute until the procedures in this clause have been exhausted.
- GENERAL PROVISIONS
You must pay your own costs in relation to:
- the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
- the performance of any action in compliance with any liability arising,under these Terms.
If any payment made by one of us to the other party under or relating to these Terms constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.
Any failure by any party to exercise any right under these Terms does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
The rights of a party under this document are cumulative and not exclusive of any rights provided by law.
Any provision of this document which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this document or the validity of that provision in any other jurisdiction.
- Governing Law and Jurisdiction
These Terms are governed by and construed under the laws in the State of Queensland, Australia and You agree to unconditionally submit to the non-exclusive jurisdiction of courts in the State of Queensland, Australia.
In the event of an inconsistency between these Terms and the Supplier Agreement, the Supplier Agreement will apply to the extent of the inconsistency.
SCHEDULE – SERVICE LEVELS
Response Time & Type
A CRITICAL FAULT is defined as one where a large element of the Software users are unable to complete an essential business function using the Software.
Ivvy must acknowledge receipt of the Fault Notification within 1 hour of receipt
A HIGH PRIORITY FAULT is one where large groups of Software users are impeded in the completion of an essential business function using the Software, but a work around exists.
Ivvy must acknowledge receipt of the Fault Notification within 3 hours of receipt
A MEDIUM PRIORITY FAULT is defined as one where a small number of individuals are impeded in the completion of an essential business function using the Software.
Ivvy must acknowledge receipt of the Fault Notification within 6 hours or receipt
A LOW PRIORITY FAULT is defined as one where an individual is impeded in the completion of a non-essential business activity using the Software or where a temporary work around exists for an essential business function using the Software.
Ivvy must acknowledge receipt of the Fault Notification within 24 hours of receipt