Terms of use

The agreement for access to and use of ESIO, provided by Intelexact Technologies Pty Ltd.

Background

Intelexact Technologies Pty Ltd ACN 645 405 116 (Intelexact) is the provider of the Services, an online application providing End Users with a comprehensive care management platform for NDIS and aged care services.The Customer seeks to access and use the Services, and for its End Users to access and use the Services.
This Agreement sets out the terms and conditions agreed between the parties for the access to and use of the Services.

1 Formation and precedence

1.1 Formation and composition

The following are comprised in this Agreement:

(a) the applicable Quotation;

(b) the provisions of these Terms of Use, as amended under clause 17.11 from time to time; and

(c) any other document forming part of this Agreement as agreed to in writing by the parties, together the ‘Agreement‘.

18.2 Precedence for this Agreement

In the event of any conflict or inconsistency between one or more of the documents, for interpretation, the following will be the order of precedence (highest to lowest):

(a) the Special Conditions set out in the applicable Quotation;

(b) any other provisions in the applicable Quotation;

(d) any other document forming part of this Agreement as agreed to in writing by the parties, including the Service Level Agreement.

1.2 No additional provisions

Any additional terms and conditions promulgated by a party will not form part of this Agreement and will have no force or effect unless accepted expressly signed and agreed in writing by both parties.

2 Term

2.1 Pilot Period and Initial Term

This Agreement commences on the Commencement Date and:

(a) unless the Customer opts to terminate this Agreement by notice to Intelexact prior to the expiry of the Pilot Period; or

(b) is subject always to a rollover onto a Further Term under clause 2.2,

continues until the expiry of the Initial Term, unless otherwise terminated earlier in accordance with this Agreement.

2.2 Rollover

Unless:

(a) one of the parties provides written notice to the other party of an intention to allow the Term to expire 30 days prior to the expiry of the Initial Term or any Further Term under this clause 2.2 (Rollover) (Expiry Notice); or

(b) this Agreement has been otherwise terminated earlier in accordance with clause 14 (Termination) of this Agreement, this Agreement will automatically and continuously renew for further periods equal to the Initial Term (Further Term) on the terms and conditions of this Agreement.

3 Grant of Licence

3.1 Grant of Licence

Subject to clause 3.2, Intelexact grants to Customer a non-exclusive, revocable, non-transferable licence to:

(a) access and use the Services; and

(b) use any Intellectual Property Rights in Materials deliberately provided by Intelexact under this Agreement to Customer,

for internal business purposes only, in accordance with the terms of this Agreement, for the Term (Licence).

3.2 Restrictions and special acknowledgments

The Customer agrees the Licence is subject to the following restrictions:

(a) the Licence expressly excludes a right of sub-licence;

(b) Customer’s use of the Services is subject to the limitations specified in the Quotation, and Intelexact reserves the right to charge Additional Fees for the Customer’s usage of the Services beyond what is specified in the Quotation;

(c) Customer must not develop, use or make available the Services or any Documentation to any other third party, without Intelexact’s prior written agreement; and

(d) Intelexact’s ownership of the Intellectual Property Rights in the Services and the Documentation is not altered by this Agreement and remains the sole property of Intelexact.

3.3 Authorised use

(a) The Customer must take reasonable steps to ensure the End Users’ use of the Services is strictly in accordance with the terms of this Agreement.

(b) The Customer is responsible for ensuring all Login Credentials are kept secure and confidential according to Customer’s internal security protocols.

(c) The Customer must promptly notify Intelexact of any unauthorised use or disclosure of the Customer’s or the End Users’ Login Credentials, or any actual or potential breaches of security which may affect the Customer or the End Users, the Customer’s access to Software, or the End Users’ access to Software, and Intelexact will reset or replace (as the case may be) the relevant Login Credentials or take such other action as Intelexact deems appropriate.

(d) The Customer acknowledges and agrees that:

(i) the Customer determines who is an End User and what level of access (if applicable), that End User has to the Services. Information about user roles and access levels are available in the Services;

(ii) the Customer is responsible for all End Users’ use of the Services; and

(iii) the Customer controls each End User’s level of access to the Services at all times and can revoke or change an End User’s access, or level of access, at any time for any reason, in which case that person or entity will cease to be an End User or will have that different level of access, as the case may be.

3.4 Limited Licence

The Customer acknowledges and agrees that the rights granted to Customer under the Licence are expressly limited to the rights stated in clause 3.1. To the fullest extent permitted by Law, all implied rights in relation to the Licence are excluded.

4. Use of Software

4.1 Software Use

The Customer, it’s Personnel and End Users must not, in their use of the Services:

(a) communicate any data (including Personal Information) obtained from the Services:

(i) unless you hold all necessary rights, licences and consents to do so;

(ii) in a way which is misleading or deceptive in nature, constitutes unlawful activity, or infringes the intellectual property or other rights of any person;

(b) do anything which is fraudulent or unlawful, offensive, abusive, indecent, defamatory or menacing, or in breach of any rights of others;

(d) collect information (including information about other users) for purposes outside these Terms of Use.

4.2 Third party use

The Customer must not, and must not allow a third party to, access or use the Services in a manner that:

(a) abuses or materially disrupts any aspect of the networks, security systems, services and/or our websites;

(b) interferes with the use of the Services by other users;

(d) violates or facilitates the violation of the legal rights of Intelexact or any other user of Software;

(e) constitutes data collection, data scraping or data mining activities on or in respect of the Services without the prior written consent of Intelexact; or

(f) otherwise constitutes abuse or inappropriate use of the Services, as determined by Intelexact in its sole discretion.

4.3 Dormant End Users

Intelexact reserves the right to charge the Customer a Dormant End User Fee in accordance with clause 8.1, with Dormant End Users to be reconciled against the number of User Licenses granted under the applicable Quotation and invoiced on an annual basis.

4.4 Fraudulent or unlawful use

The Customer must not use the Services for any fraudulent or illegal purposes, or to intentionally distribute malware, viruses or any other computer code, files or programs of a destructive or deceptive nature.

4.5 Suspension for breach of obligations

Intelexact reserves the right to suspend the Customer’s access to the Services if, in our sole opinion, you breach your obligations to Intelexact or communicate content which is abusive to other users.

5 Availability

5.1 Availability

Intelexact will use its reasonable endeavours to provide the Customer with ongoing access to the Services during the Term (unless the parties expressly agree otherwise in writing), with the exception of unavailability caused by events described in clauses 5.2 and 5.3.

5.2 Suspension

(a) Intelexact may, with prior notice to the Customer, temporarily suspend (in part or in whole) the Customer’s access to the Services if:

(i) Intelexact is required by Law to do so;

(ii) an event of Exceptional Circumstance occurs, which affects or may affect Intelexact’s ability to provide the Services;

(iii) if there is a Claim made that the Customer (or its End Users) has infringed the rights of any person in connection with the Services;

(iv) if there is a Claim made that exposes Intelexact to Liability or prosecution for an offence or Liability to a statutory prosecution arising from the Customer’s conduct or the conduct of the Customer’s End Users; or

(v) if Intelexact determines that the Customer is in breach of this Agreement including where Intelexact determines that the Customer has failed to meet the obligations under clauses 6.3 or 6.4.

(b) Suspension in accordance with clause 5.2(a) will not affect any right which accrue prior to, or after, suspension of Intelexact’s obligations under this Agreement.

5.3 Downtime and limitations

The Customer acknowledges and agrees that:

(a) access to the Services may occasionally be limited due to Scheduled Maintenance;

(b) access to the Services is reliant upon various factors outside the control of Intelexact, including, without limitation, events of Exceptional Circumstance, the outage of any third party provider’s software or infrastructure upon which Intelexact’s Software is reliant, the Customer’s internet service provider, telecommunications provider or equipment used to access the Services. While Intelexact will use all reasonable endeavours to ensure the Customer has continuous access to the Services in accordance with clause 5.1, Intelexact will not be Liable to the Customer or any other person for any Claim or to any other extent for Loss or damage caused by such factors; and

(c) Intelexact’s ability and obligation to provide access to the Services is subject to the Customer’s compliance with the obligations under clauses 6.3 and 6.4 and any other limitation or exclusion set out in this Agreement.

5.4 Notice

In the event that access to the Services is suspended in accordance with clause 5.2, Intelexact will endeavour to provide the Customer with prior written notice where it is reasonable and practicable to do so in Intelexact’s reasonable opinion.

6 Obligations

6.1 Intelexact obligations

Intelexact will take reasonable steps to provide the Services to the Customer in respect of the Customer and the Customer’s End Users’ use of the Services during the Term in accordance with terms of this Agreement.

6.2 Subcontracting

(a) The Customer acknowledges and agrees that Intelexact may delegate the performance of any of its obligations under this Agreement to any of its subcontractors, at its discretion, which may change from time to time.

(b) Any subcontracting arrangement must impose obligations on the subcontractor equivalent to the obligations in this Agreement.

(c) Intelexact agrees that, regardless of any subcontracting arrangement, Intelexact remains Liable for all acts and omissions of any subcontractors.

6.3 Mutual obligations and warranties

(a) Each party warrants to the other that it:

(i) will perform its duties under this Agreement with care, skill and diligence, and in accordance with all applicable Laws; and

(ii) has full power and authority to enter into this Agreement.

(b) Each party must promptly notify the other party of any:

(i) unauthorised use of the other party’s Intellectual Property Rights;

(ii) material interruptions to use of the Services (whether in part or as a whole) or of any material errors or other problems that are experienced by End Users when using the Services;

(iii) material event that is likely to or will impact on access and use of the Services, the provision of the Services or any other obligation of Intelexact; and

(iv) unauthorised access or use of the Services, Service or the Customer or the Customer’s End Users’ Login Credentials.

6.4 Customer obligations and warranties

(a) The Customer must (and you must take reasonable steps to ensure that Customer Personnel and End Users):

(i) upload to the Services only data or information that is requested by, required for, or specifically relevant to, the Services; and

(ii) on an ongoing basis, update Personal Information contained within, or provided in relation to, the Services, where it is incomplete, inaccurate or out of date.

(b) The Customer warrants to Intelexact that:

(i) all Login Credentials and Personal Information provided to Intelexact whether directly or through the Services are current, true, accurate and complete; and

(ii) it has necessary rights, consents or approvals to upload and use the Customer Data in respect of the Services.

6.5 Intelexact’s warranty

Intelexact warrants to the Customer that:

(a) to the best of its knowledge at the time of entering this Agreement, the Services will not infringe the Intellectual Property Rights of any third party;

(b) it has the full right and title to enter into this Agreement and to grant the rights it sets out; and

6.6 Limitation of liability for warranty

(a) Notwithstanding clause 15.4(a), to the extent a court of law has determined Intelexact is in breach of its warranty in clause 6.5(a) of this Agreement, the Customer’s remedy for this breach is limited (at the option of Intelexact) to Intelexact:

(i) providing functionally equivalent non-infringing Software or Services to the Customer;

(ii) obtaining a licence for Customer benefit from the relevant third party for Customer to continue using the Services or Services; or

(iii) reimbursing the Customer (subject to clause 15.4(b)) for the Fees.

7 Intellectual Property Rights and data

7.1 Intelexact Background IP

No rights of ownership to Intelexact Background IP are transferred under this Agreement, and all such rights remain with Intelexact.

7.2 Customer Background IP

(a) No rights of ownership to Customer Background IP are transferred under this Agreement, and all such rights remain with the Customer.

(b) Customer grants to Intelexact a non-exclusive, non-transferable, royalty free licence to use Customer Background IP and Materials provided to Intelexact for the purposes of the Licence and performing obligations under this Agreement, for the Term.

7.3 Provision and ownership of New IP

(a) The Customer acknowledges that Intelexact creates regular updates and enhancements to its Software, in which new Intellectual Property Rights may subsist.

(b) Upon creation, all New IP will be owned by, and assigned to, Intelexact.

7.4 Prohibited activities

Unless otherwise expressly authorised in writing by Intelexact, Customer will not (and must not permit or procure Customer Personnel and End Users to):

(a) reverse engineer, reverse assemble, disassemble or decompile the Intelexact Background IP or Software;

(b) reproduce, or otherwise modify or adapt the Services to create any derivative works based on the Intelexact Background IP or Software outside the use of a Intelexact API;

(c) use, or permit, Intelexact Background IP or Software to be accessed or used in any way other than in a manner expressly permitted by this Agreement;

(d) attempt to gain unauthorised access to any Materials or data, other than those which the Customer have been given express permission to access on the computer system which the Services is hosted;

(e) use the Intelexact Background IP or Software in a manner contrary to that permitted or authorised by Law;

(f) except for a Intelexact API, permit the Services to be accessed in any unauthorised way, including via interfaces (including exposing or ‘passing through’ a software application program interface (API) or otherwise making the Services accessible as an API);

(g) do or permit any act that uses the Intelexact Background IP or Software in a manner contrary to applicable Laws, or in a way that could infringe a third party’s Intellectual Property Rights; or

(h) use the Intelexact Background IP or Software in any way that could damage the reputation of Intelexact.

8. Payment

8.1 Payment of Fees

(a) Intelexact will issue Customer with a Tax Invoice for the Fees payable under this Agreement:

(i) for the Services, on a monthly basis in arrears;

(ii) for professional services associated with the Services, on a monthly basis as time is incurred by Intelexact; and

(iii) for early payment, annually in accordance with the applicable Quotation (including discounts).

(b) Customer agrees to pay Intelexact the Fees or any other amounts owing under this Agreement to Intelexact within 30 days from the date of Intelexact’s Tax Invoice, or such other period as specified on the Tax Invoice.

8.2 Late or non-payment of invoices

If the Customer fails to pay the Fees by the due date specified in clause 8.1(b), Intelexact may charge interest on the unpaid amount owing, at the rate of 3% plus the RBA Cash Rate Target at the relevant due date, and compounds weekly from the due date until the date the outstanding amount is paid.

8.3 Fee increases

Intelexact may annually increase Fees or any other amounts payable under this Agreement with 60 days’ notice. In the event the Customer decides to terminate this Agreement as a result of a price increase under this clause 8.3, the Customer may terminate within the 60 days after the price increase announcement, by providing Intelexact with 30 days written notice (in which case the termination will take effect on the expiry of the Initial Term or then- current Further Term).

8.4 Payment disputes

If there is bona fide dispute about whether a Fee or other amount contemplated by this Agreement is payable or available:

(a) Customer must notify Intelexact within 14 days from the date of receipt of the Tax Invoice of the details and nature of the dispute;

(b) Customer must pay Intelexact the portion of the invoiced amounts not in dispute;

(d) appropriate Personnel from both parties with authority to resolve the dispute must meet within 14 days of the date of the Customer notice and make a bona fide attempt to settle the disputed amount, failing which the dispute will be referred to the dispute resolution process set out in clause 16.

9 GST

9.1 GST exclusive amounts

Unless expressly stated to the contrary all amounts expressed in this Agreement are exclusive of GST.

9.2 Taxable supplies

If a Supplier is obliged under the GST Law to pay an amount of GST for a taxable supply made by the Supplier to a Recipient under this Agreement, the Recipient must pay the Supplier an amount equal to the GST payable on the supply by the Supplier.

9.3 Time for payment

The Recipient must pay the amount referred to in clause 9.2 and any interest, penalty, fine or expense relating to the GST, in addition to and at the same time as the consideration otherwise payable by the Recipient for the supply.

9.4 Tax Invoice

If requested by the Recipient, the Supplier must provide the Recipient with a Tax Invoice on or before payment of the amounts required by this clause 9.

9.5 Adjustment events

If an adjustment event arises for a taxable supply under clause 9.2, the amounts required to be paid must be recalculated (Recalculated Amount) and the Recipient must pay the Supplier the Recalculated Amount.

9.6 Reimbursements

Where a party is required to pay for or reimburse an expense or outgoing of another party, the amount required to be paid or reimbursed is the amount of the expense or outgoing less any input tax credits to which the other party, or the representative member of a GST group to which they belong, is entitled.

9.7 Interpretation

Words which have a defined meaning in the GST Law have the same meaning in this Agreement unless the context otherwise requires.

10 Confidential Information

10 .1 Disclosure

(a) A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.

(b) Each party must take reasonable steps to ensure that its Personnel do not make public or disclose the other party’s Confidential Information.

(c) A party is not in breach of this clause 10.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.

(d) Notwithstanding any other provision of this clause 10.1, the parties may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to their respective Personnel.

10.2 Return of Confidential Information

Each party must on demand, and on termination or expiry of this Agreement, return to the other party or destroy any Confidential Information supplied by the other party in connection with this Agreement.

10.3 Publicity

(a) Customer agrees Intelexact may promote its use of the Services:

(i) on Intelexact ‘s website, responses to requests for proposals and external presentations for the purposes of promoting the Services; and

(ii) in case studies and press releases for marketing and publicity purposes, where Customer’s prior written consent is obtained.

(b) This clause 10.3 survives termination or expiry of this Agreement for a period of one year.

10.4 Non-disparagement

Each party (including its Personnel) must not disparage the other party (including the other party’s Personnel) or make any statement or publication, whether oral or in writing, directly or indirectly which does, or is likely to bring the other party (including the other party’s Personnel) into disrepute, ridicule or adversely affect their commercial interests, or otherwise take any action which could reasonably be expected to adversely affect their personal or professional reputation.

11 Privacy

11.1 Privacy Laws

(a) Each party agrees to comply with all applicable Privacy Laws in relation to any and all Personal Information that it collects in respect of this Agreement.

(b) Without limiting clause

11.1(a), Intelexact will use Personal Information as required to provide the Services and in accordance with its privacy policy, as amended from time to time.

12 Data ownership and security

12.1 Ownership and provision

(a) No rights of ownership in and to the Customer Data are transferred under this Agreement and all such rights remain with the Customer.

(b) The Customer grants to Intelexact a non-exclusive, non-transferable, worldwide, royalty free licence to use, copy, transmit, store, analyse and back-up Customer Data for the purposes of:

(i) performing Intelexact’s obligations under the Agreement; and

(ii) generating aggregated and de-identified data that may be used for the purposes of protecting, improving and developing the Software and Services.

(c) The Customer acknowledges and agrees that it is responsible for the accuracy, quality, integrity, legality and reliability of all Customer Data.

(d) The Customer warrants that:

(i) the Customer Data is not unlawful, unethical, illegal or misleading in nature;

(ii) the Customer Data will not interfere with, or otherwise adversely affect the integrity and functionality of the Services; and

(iii) Intelexact’s use of the Customer Data in accordance with this Agreement, does not, or is not likely to, give rise to any Claim or Liability (including Claims by third parties).

12.2 Data security

In using Customer Data during the Term, Intelexact will implement and maintain technical and organisational measures to reasonably protect the Customer Data from unauthorised access, use or disclosure or any misuse, damage or destruction.

12.3 Data Breach response

(a) Upon becoming aware of an Eligible Data Breach which impacts the Customer Data or any Personal Information comprised in the Customer Data, Intelexact will:

(i) promptly notify the Customer of the Eligible Data Breach and all relevant information known to it at the time of notice (including without limitation, cause of the Eligible Data Breach and types of information, Products or systems affected or may be affected);

(ii) take reasonable steps to contain the Eligible Data Breach and its impacts;

(iii) investigate the Eligible Data Breach as a matter of priority; and

(iv) keep the Customer appraised of any significant information or developments in respect of the Eligible Data Breach.

(b) If an Eligible Data Breach has occurred, each party will provide all reasonable assistance to the other party to ensure its respective compliance with all the requirements and obligations relevant to an Eligible Data Breach.

12.4 Access and complaints

Customer must promptly (and in any case, within 48 hours) notify Intelexact:

(a) if Customer receives a request from an individual for access to or correction of Personal Information that disclosed to Intelexact by Customer or Customer Personnel or End Users in connection with this Agreement, about the individual and comply with Intelexact’s reasonable directions regarding providing such access to the individual or correcting such Personal Information; and

(b) of any complaint from any person alleging a breach of the applicable Privacy Laws with respect to the Personal Information disclosed to Intelexact by Customer or Customer Personnel or End Users.

13 Insurance

(a) Intelexact will hold and maintain the following insurance policies during the Term:

(i) public and product liability insurance in the amount of $20 million per occurrence and in the aggregate;

(ii) professional indemnity insurance in the amount of $1 million per occurrence and in the aggregate; and

(iii) cyber risk security in the amount of $1 million per occurrence in the aggregate.

(b) Intelexact will, upon request by the Customer during the Term, provide a copy of the certificates of currency for the required insurance under this clause 13.

14 Termination

14.1 Termination for cause

Either party (First Party) may terminate this Agreement immediately by written notice if the other party is:

(a) in breach of this Agreement and that other party has failed to remedy the breach within 30 days of a written notice to it from the First Party, specifying the breach and requiring it to be remedied;

(b) in breach of this Agreement and that breach is not capable of remedy, as reasonably determined by the First Party; or

14.2 No prejudice of rights

Termination will not prejudice or affect any right or action which has accrued or will thereafter accrue to either party.

14.3 Consequences of termination or expiry

Upon termination or expiry of this Agreement:

(a) the Licence terminates immediately;

(b) Intelexact will cease to provide the Services;

(d) no refund of Fees is due to Customer;

(e) unless otherwise agreed in accordance with clause 14.4:

(i) each party must promptly return or (if requested to do so by other party) destroy all Materials or Confidential Information belonging to the other party in that party’s possession or control; and

(ii) on the Customer’s written request, Intelexact must return to Customer or destroy any Customer Data or Personal Information stored on the Portal within 30 days of the date of termination or expiry.

14.4 Archive Access

(a) Customer may enable Archive Access, by either:

(i) opting to include Archive Access in the applicable Quotation; or

(ii) by the Customer’s submitting written request to Intelexact, upon notice of termination or non-renewal under clause 2.2(a), which may be accepted at Intelexact’s sole discretion.

(b) Subject to Customer’s compliance with the requirements of 14.3(a)-14.3(d), where Customer has selected Archive Access under clause 14.4(a):

(i) Intelexact will provide the Customer with Archive Access for no greater than 3 years post-termination, or as otherwise agreed in writing by the parties;

(ii) Archive Access services will be provided in accordance with the terms of this Agreement; and

(iii) the Customer agrees to pay the Archive Access Fee annually in advance.

14.5 Survival

The following clauses survive termination or expiry of this Agreement: clause 6.5 (Intellectual Property Rights), clause 10 (Confidential Information), clause 11 (Privacy), clause 14.3 (Consequences of Termination), clause 14.4 (Archive Access), this clause 14.4 (Survival), clause 15 (Liability), and clause 10.3 (Publicity).

15 Liability

15.1 Exclusion of Liability

(a) To the extent permitted by Law, in no event will either party be Liable:

(i) to the other party for Consequential Loss;

(ii) for Claims made by third parties arising out of or in connection with this Agreement; or

(iii) property damage of any description.

(b) Clause 15.1(a) does not apply in respect of any Liability, Loss or damage of any kind whatsoever arising out of, or in connection with:

(i) any fraud by either party (or any of its Personnel);

(ii) the actual infringement of the Intellectual Property Rights of any third party; and

(iii) clauses 10 (Confidential Information) and 11 (Privacy).

2.2 Consumer guarantees

(a) Intelexact’s goods and services may come with guarantees that cannot be excluded under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).

(b) The following clauses 15.2(c) and 15.2(d) apply where the Australian Consumer Law applies to the provision of any goods or services under this Agreement, and any warranties against defects are offered to Customer by Intelexact under this Agreement.

(i) cancel this Agreement with Intelexact; and

(ii) a refund for the unused portion or compensation for its reduced value.

(d) The Customer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, the Customer is entitled to have the failure rectified in a reasonable time. If this is not done, the Customer is entitled to a refund for the goods and to cancel this Agreement for the service and obtain a refund of any unused portion. The Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure with the goods or services.

15.3 Implied terms

(a) To the full extent permitted by Law, any term which would otherwise be implied into this Agreement is excluded.

(b) To the full extent permitted by Law, the Customer acknowledges that the Services (and all Documentation and Materials) is licensed by Intelexact on an ‘as is, where is’ basis and, subject to the express warranties and representations made in this Agreement, Intelexact makes no warranties or representations as to the Services (and anything else provided under the Licence).

(c) In the event any Law implies or imposes terms into this Agreement which cannot be lawfully excluded, such terms will apply, save that the Liability of Intelexact for breach of any such term will be limited in accordance with clause 15.4(b).

15.4 Limitation of Liability

(a) To the extent Intelexact is found Liable in connection with this Agreement, its Liability will be limited (at the option of Intelexact) to any one or more of the following:

(i) Re-supplying services to which the Liability relates or the supply of equivalent services; or

(ii) Reimbursing the Customer for paying someone else to supply the services which the Liability relates, up to the limit in clause 15.4(b).

(b) To the extent that Intelexact is Liable in connection with this Agreement (whether in contract, under a right of indemnity, tort (including negligence) or statute), then Intelexact’s cumulative Liability in the aggregate (to the fullest extent permitted by Law) will in no event exceed the sum of the Fees received by Intelexact under this Agreement in the 12 months prior to the date upon which the Liability first arose.

15.5 Proportionate reduction

A party’s liability under this Agreement will be reduced to the extent that the relevant Loss was caused or contributed to by the negligence or unlawful act or omission of the other party or its officer’s employees, agents or representatives.

16 Dispute resolution

16.1 Dispute resolution process

(a) A party claiming a Dispute may, within seven days of the Dispute arising, give the other party written notice providing particulars of the Dispute and designating the representatives nominated to settle the Dispute.

(b) The parties must within 14 days of receiving the notice described in clause 16.1(a) above, meet and use their best efforts to resolve the Dispute.

(c) If the Dispute has not been resolved within 30 days (or such other time as mutually agreed by the parties) of the notice described in clause 16.1(a) above, the parties shall enter into mediation led by an accredited mediator.

16.2 Urgent relief

Nothing in this Agreement shall prevent any party from seeking injunctive or urgent declaratory relief for any matter (including to protect Confidential Information) arising out of, or in connection with, this Agreement.

16.3 Obligations continue

Despite the existence of a Dispute, each party will at all times continue to fulfil all obligations under this Agreement, including in respect of confidentiality.

17 Miscellaneous

17.1 Notices

The parties may give each other notice under this Agreement by email or by post, at the address details specified in the Contract Details or otherwise notified to the other party from time to time. Any notice or other communication to or by any party must be in writing and in the English language.

17.2 Governing law and jurisdiction

This Agreement is governed by and construed in accordance with the laws of South Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Adelaide, South Australia.

17.3 Exercise rights

A single or partial exercise or waiver by a party of any right under or relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right.

17.4 Merger

If the liability of a party to pay money under this Agreement becomes merged in any deed, judgment, order or other thing, the party liable must pay interest on the amount owing from time to time under that deed, judgment, order or other thing at the higher of the rate payable under this Agreement and that fixed by or payable under that deed, judgment, order or other thing.

17.5 Moratorium legislation

Any law which varies prevents or prejudicially affects the exercise by a party of any right, power or remedy conferred on it under this Agreement is excluded to the extent permitted by law.

17.6 No assignment

A party must not assign, transfer or novate all or any part of its rights or obligations under or relating to this Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of each other party.

17.7 Remedies cumulative

The rights and remedies under this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

17.8 Severability

If a provision of this Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

17.9 Further assurance

Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to this Agreement and the transactions contemplated by it.

17.10 Costs

Each party is responsible for all its own costs incurred in the performance of this Agreement including legal costs.

17.11 Variation

An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

17.12 Waiver

(a) A party’s waiver of a right under or relating to this Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.

(b) No other act, omission or delay by a party will constitute a waiver of a right.

17.13 Counterparts

This Agreement may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this Agreement may deliver it to, or exchange it with, another party by emailing a PDF (portable document format) copy of the executed counterpart to that other party.

17.14 Whole agreement

This Agreement:

(a) is the entire agreement and understanding between the parties relating to the subject matter of this Agreement; and

(b) supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter, including any ‘Letter of Intent’ or similar document signed by the parties.

1 8 Definitions and interpretation

18.1 Definitions

In this Agreement:

Additional Fees means the fees which Intelexact may charge for Services outside of those specified in the relevant Quotation, based on Intelexact’s standard rates and fees in place from time to time.

Affiliate means in respect of a party, an entity that controls, is controlled by, or under common control with, that party.

Agreement has the meaning given to that term in clause 1.1.

Archive Access means Intelexact’s post-termination Service offering to maintain read-only and exportable versions of specified Customer Data and Personal Information, as outlined in the applicable Quotation. For the avoidance of doubt, the normal functionality of the Software is not available.

Archive Access Fee means the fee payable for the Archive Access services, valued at 25% of the Base Platform Fee in the final 12-months of the Initial Term or Further Term as applicable.

Base Platform Fee means the base Service Fee as specified in the applicable Quotation.

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:

(a) it is present, unascertained, immediate, future or contingent;

(b) it is based in contract, tort, statute or otherwise; or

Commencement Date has the meaning given to that term in the relevant Quotation.

Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), all information disclosed by or on behalf of the Discloser, concerning or relating to:

(a) know-how, trade secrets, ideas, marketing strategies, operational information, technical information and financial information;

(b) proprietary software tools, business processes, project management methodologies and tools, software testing and verification methods, solution architecture models and solutions;

(d) other information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential,

but excluding any such information:

(e) which is publicly known;

(f) which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or

(g) which is developed independently by the other party without reliance on any of the confidential information.

Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; loss of data; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this Agreement, including any of the above types of loss arising from an interruption to a business or activity.

Contract Details means the details set out in Contract Details table of the applicable Quotation.

Customer means the party named as the Customer in the Quotation.

Customer Data means all data provided, uploaded or generated by or on behalf of the Customer or its End Users to any platform, system or other infrastructure used by Intelexact in the course of providing the Services.

Customer Background IP means all Intellectual Property Rights of the Customer, which are created or developed prior to or independently of this Agreement or the provision of Software or Services by Intelexact to the Customer.

Documentation means any user manuals, instructions or support information supplied by Intelexact for use of the Software, together with any revisions Intelexact may publish from time to time.

Dormant End User means an End User who has not been active in using or accessing in the Services during the Terms for a period of 90 days or more, as determined by Intelexact.

Dormant End User Fee has the meaning given to that term in clause, and as specified in the applicable Quotation.

Eligible Data Breach has the meaning given to “eligible data breach” in the applicable Privacy Law.

End User means any officers, employees and contractors engaged by Customer, who may use or access the Services, including Dormant End Users.

Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include:

(a) adverse changes in government regulations;

(b) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;

(c) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;

(d) strikes or industrial disputes; and

(e) acts or omissions of any third party network providers (such as internet, telephony or power provider).

Expiry Notice has the meaning given to that term in clause 2.2(a).

Fees means the sum of the Services Fees and any Additional Fees.

Further Term has the meaning given to that term in clause 2.2.

Government Body means:

(a) any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;

(b) any public authority constituted by or under a law of any country or political subdivision of any country; and

GST means GST as that term is defined in the GST Law, and any interest, penalties, fines or expenses relating to such GST.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or associated Commonwealth legislation, regulations and publicly-available rulings.

Initial Term has the meaning given to that term in the Quotation.

Insolvency Event means an event of bankruptcy or insolvency, an assignment for the benefit of creditors, the appointment of an administrator, receiver, receiver and manager, provisional liquidator, liquidator and official manager or any similar person to any assets of a person, a failure to comply with a statutory demand, or anything else which occurs which is analogous or has a substantially similar effect, under the laws of any jurisdiction, or the person is otherwise insolvent or unable to pay its debts as and when they fall due.

Intelexact API means the software application programming interface made available by Intelexact for the purposes of supporting the Services and the provision of the Services for use by the Customer and Customer Personnel.

Intelexact Background IP means all Intellectual Property Rights of Intelexact created or developed prior to or independently of this Agreement or the provision of Software or Services by Intelexact to the Customer, including the Services and the algorithms used by or comprised in the Services.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions, plant breeder’s rights and discoveries and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Jurisdiction has the meaning given to that term in the Quotation, or if none specified means Adelaide, South Australia.

Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:

(a) present or future; or

(b) State, federal or otherwise.

Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person, and Liable has the corresponding meaning.

Licence has the meaning given to that term in clause 3.1.

Login Credentials means an individual’s username, password, access key or code, or any other information required by an individual to access the Services.

Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.

Material means property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.

New IP means all Intellectual Property Rights created or developed during the Term, in the course of, or in connection with this Agreement, including (without limitation) all Intellectual Property Rights in the Services Enhancements.

Personal Information has the meaning given to that term (or an equivalent term) in the applicable Privacy Law.

Personnel means in relation to a party, any employee, officer, agent, subcontractor, or Affiliate of that party.

Pilot Period has the meaning given to that term in the relevant Quotation.

Portal means the web-based interface or mobile application to access and use the Services, including https://app.workesio.com & https://app.careesio.com.

Privacy Law means:

(a) the Privacy Act 1988 (Cth); and/or

(b) any legislation from time to time in force in any:

(i) Australian jurisdiction; and

(ii) non-Australian jurisdiction (to the extent that a party is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data.

Quotation means a document which is agreed and signed by both parties, detailing the Services required to be provided by Intelexact to the Customer and the Fees for such Software and Services, including its schedules and annexures.

RBA Cash Rate Target means:

(a) the cash rate target published by the Reserve Bank of Australia from time to time;

(b) if the Reserve Bank of Australia ceases to publish the cash rate target, the rate published by the Reserve Bank of Australia which reflects the Reserve Bank of Australia’s target for the overnight money market interest rate for the purposes of its monetary policy; or

(c) (c) if the Reserve Bank of Australia ceases to publish the rates referred to in paragraphs (a) and (b), the rate which, in the reasonable opinion of Intelexact, reflects its cost of funding.

Scheduled Maintenance means ongoing preventative maintenance (including but not limited to security patches) or emergency maintenance in relation to any software used, or relied upon, to provide the Services.

Services means the provision of the Software as a service, and any other services detailed in the Quotation.

Services Fees means the Services Fees as described in the Fees section of the applicable Quotation, including the Dormant End User Fee.

Software means the software developed and owned by Intelexact at the time this Agreement is entered into but as modified, developed or enhanced by Intelexact from time to time (including any corrections or fixes) and which is provided to the Customer, and any of the optional modules specified in the Quotation.

Tax means any present or future tax, levy, deduction, impost, withholding, charge or duty which is levied or imposed by any Government Body together with any interest, penalty or fine on those amounts.

Tax Invoice means the same as ‘tax invoice’ in the GST Law.

Term means the Initial Term and any Further Term.

Terms of Use means the terms and conditions contained in this document.

User Licenses means the licenses granted to the Services under the applicable Order Form.

Where a term used in this Agreement appears in bold type in the table in the Quotation that term has the meaning shown opposite it in the Quotation.

18.2 Interpretation

(a) Unless the contrary intention appears, a reference in this Agreement to:

(i) this Agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;

(ii) the singular includes the plural and the plural includes the singular;

(iii) a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;

(iv) an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this Agreement and a reference to this Agreement includes any schedule or attachment;

(v) a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;

(vi) any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;

(vii) money is to Australian dollars, unless otherwise stated; and

(viii) a time is a reference to Adelaide time unless otherwise specified.

(b) The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.

(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

(d) Headings and any table of contents or index are for convenience only and do not affect the interpretation of this Agreement.

(e) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.a