Terms of use

Terms

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Background

1. The Customer wishes for the Supplier to provide the Services.
2. The parties have agreed that the Supplier is to provide the Services to the Customer on the terms of this document

 

Agreed terms

 

1 Supply of the Services

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Supply 1. Subject to the Customer paying the Fees as specified in clause 2, the Supplier will provide the Services. 2. The Services include access to the VoteNow App. The Customer acknowledges and agrees management of the VoteNow Platform, including creating and amending campaigns, viewing results and editing functions as the system allows, can only occur via a desktop web-browser.  

Customer requirements

3. The Customer must:

1. not resupply or sublicense the Services or the VoteNow Platform to third parties;
2. have all resources necessary to receive the Services, including hardware, software, telecommunication resources and internet access acceptable to the Supplier;
3. ensure that its computer and telecommunications network is secure, and the Supplier is not responsible for the security of the Customer Material or the hardware and telecommunications network of the Customer;
4. comply with the recommendations of the Supplier from time to time in relation to the Customer’s computer and telecommunications network and use of the Services;
5. ensure all usernames, passwords and other sensitive information associated with the Services are kept secure from unauthorised use or access at all times
6. notify the Supplier if there is a security breach, unauthorised access to the Services or disclosure of sensitive information; and
7. backup any Customer Data or any other data as often as is necessary to ensure that it can be recovered following any outage.

 

Customer acknowledgement

4. The Customer acknowledges and agrees that

1. this Agreement is non-exclusive;
2. if the Customer does not comply with clause 1.3 then the Supplier is not obliged to supply the Services to the Customer;
3. if the Customer does not have the minimum hardware, software and communications infrastructure recommended by the Supplier, the Customer’s ability to receive the Services may be diminished.

  5. Subject to clause 9.6, the Customer acknowledges and agrees that:

1. any timeframes given by the Supplier to the Customer in relation to the supply of the Services are estimates only and the Services may contain errors and may not be available from time to time;
2. the Supplier makes no representation and gives no warranty that the Services will not infringe the Intellectual Property Rights or other rights of any third party;
3. the Supplier makes no representation and gives no warranty that the Services will be completely free from defects, completely fit for any particular purpose or function as specified in the Documentation;
4. the Supplier makes no representation and gives no warranty that the Services will not contain viruses or other malicious software, code or scripts;
5. the Supplier makes no representation and gives no warranty about the suitability or performance of any third party service provider referred to the Customer by the Supplier; and
6. the Supplier is not responsible for the resilience or availability of the communications network over which the Services are supplied.

 

Service Levels

6. Any service levels nominated by the Supplier from time to time are non-binding targets. 7. The Supplier will not be:

1. in breach of this Agreement as a result of; or
2. liable for,

  any failure or delay in the performance of the Supplier’s obligations under this Agreement to the extent that the failure or delay is wholly or partially caused, directly, or indirectly, by a Force Majeure Event or any act or omission of the Customer.  

Service Levels

8. The Customer must not:

1. perform any illegal or unlawful acts in connection with receipt or use of the Services; or
2. send unsolicited emails from another network that appear to have been sent using the Services or from hardware the Supplier uses to provide the Services.

  9. The Customer must not use the Services:

1. to engage in fraudulent behaviour;
2. to defame or harass any third party; or
3. in any other manner that is unacceptable to the Supplier.

 

2 Fees

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  Fees 1. The Customer must pay the Fees to the Supplier in accordance with the Payment Terms 2. If there is a dispute about whether a Fee or other amount contemplated by this document is payable, the Customer must not withhold the amount in dispute.  

Suspension

3. Without limiting any other remedy the Supplier may have under this document or at law, the Supplier may suspend or terminate the Services and the Customer’s access to the Vote Now Platform at any time including if:

1. the Customer has not fully complied with its obligations under this agreement;
2. the Customer has failed to pay the Fees; or
3. the Supplier receives a request or notice from a third party (including any regulatory body) requiring the Supplier to cease providing the Services to the Customer

 

3 Intellectual Property

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1. The Supplier Material remains the property of the Supplier. 2. The Supplier does not assign to the Customer any Intellectual Property Rights (including future Intellectual Property Rights):  

1. in the Services
2. in the VoteNow Platform;
3. in the Supplier Material; or
4. otherwise created by the Supplier in the performance of the Agreement.

  3. The Customer grants to the Supplier a non-exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in any Customer Material in connection with the Supplier and providing the Services to the Customer, including to use and modify the Customer Material. 4. The licence granted under clause 3.3 includes the right to sublicense to third parties. 5. The Customer acknowledges that:  

1. the Supplier retains all Intellectual Property Rights in the Supplier Material; and
2. nothing in this Agreement is intended to give the Customer any Intellectual Property Rights or other rights in any of the Supplier Material.

  6. The Customer acknowledges and agrees that the Supplier does not grant the Customer a licence to use any Third Party Material.

3 Intellectual Property

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Customer warranties 1. The Customer represents and warrants that use of the Customer Material by the Supplier as set out in this Agreement will not infringe the Intellectual Property Rights or other rights of any third party. 2. The Customer represents and warrants, and it is a condition of this document, that:  

1. all information provided by the Customer or on the Customer’s behalf to the Supplier is accurate and is not, whether by omission of information or otherwise, misleading;
2. the Customer has not withheld from the Supplier any document, information or other fact material to the decision of the Supplier to enter into this document; and
3. the Customer is not relying on any representation made to the Customer by the Supplier or any related body corporate of the Supplier (if any) before entry into this document.

  3. The representations made and warranties given in clauses 4.1 and 4.2 are regarded as repeated each day during the Term with respect to the facts and circumstances then subsisting. 4. Subject to clause 9.6, the Supplier makes no representation and gives no warranty that:  

1. the Services supplied in connection with this Agreement will be uninterrupted, error free, secure, timely, meet the Customer’s requirements or be fit for any particular purpose;
2. the Services will be available at all times; or
3. the Documentation is complete, accurate or sufficient to explain the Services.

 

5 Support Services

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Supply of Support Services 1. The Support Provider will provide the Customer with Support Services required to allow the Customer to use the Services and access the VoteNow Platform. Help desk 2. The Support Provider will make available a help desk facility during Business Hours to enable the Customer to seek technical and user questions relating to the Services. Acknowledgment 3. The Customer acknowledges and agrees that  

1. the Supplier is not responsible for the Support Services and expressly releases the Supplier from any claims arising out of or in connection with the Support Services; and
2. the Supplier makes no representation and gives no warranty that the Support Services will be free from errors or fit for any particular purpose or function.

 

6 Term and Termination

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1. This Agreement commences on the Commencement Date and continues for the Initial Period and each Rollover Period unless terminated earlier under clause 6. 2. Either party may terminate this Agreement by giving at least one month’s written notice to the other party before the expiry of the Initial Period or a Rollover Period, in which case the termination is effective immediately upon the expiry of that period. 3. The Customer expressly waives any rights it may have to terminate this Agreement other than as contemplated by clause 6. 4. On termination of this Agreement:  

1. the Customer is entitled to a pro-rata refund of any Fees paid in advance which have not been accounted for by reference to the provision of the Services;
2. accrued rights or remedies of a party are not affected; and
3. the Customer must deliver to the Supplier any of the Supplier’s Confidential Information or other property in the Customer’s care, custody or control.

  5. Termination of this Agreement will not affect clauses 3.3, 6.4, 7, 8, and 9 or any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination.

7 Confidential Information

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Obligations of confidence 1. Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this document, any Confidential Information of the other party provided to or obtained by that party before or after entry into this document. Exclusions 2. The obligations of confidence in clause 7.1 do not apply to Confidential Information:  

1. that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:
1. discloses the minimum amount of Confidential Information required to satisfy the law or rules;
2. before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain that Confidential Information in confidence;
2. that is in the public domain except as a result of a breach of this document or other obligation of confidence; or
3. that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

  Restriction on disclosure   3. Each party may use and disclose Confidential Information of the other party only:  

1. with the prior written consent of the other party; or
2. to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this document.

  4 If either party discloses Confidential Information under clause 7.3, that party must ensure that the information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the Cloud Services under this document.   Injunctive relief   5. Each party acknowledges that:  

1. the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and
2. in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of clause 7.

  De-identified data 6. Despite any other clause in this document, the Supplier and its suppliers may use any data which is de-identified for any purpose.  

8 Privacy

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Use of Personal Information   1. The Customer must process, use and disclose all Personal Information:  

1. in compliance with the Privacy Laws (regardless of whether or not the Customer is otherwise obliged to comply with the Privacy Laws); and
2. only for the purposes of performing its obligations under this document.

  Treatment of Personal Information   2. The Customer must obtain any necessary consents from, and make any necessary disclosures to, all relevant individuals for the purpose of disclosing their Personal Information to the Supplier under this document, and must otherwise comply in all respects with its obligations under the Privacy Act in respect of any Personal Information disclosed to the Supplier.   3 The Customer must give all assistance required by the Supplier from time to time in relation to compliance by the Supplier with the Privacy Act, or any investigation, request or enquiry (formal or otherwise) from the Privacy Commissioner regarding the Personal Information disclosed to the Supplier under this document.   4. The Customer indemnifies the Supplier against all costs, expenses, losses, proceedings and claims of any nature suffered, brought or incurred directly or indirectly as a result of a breach by the Customer of its obligations under clause 8.   5 The Customer must:  

1. comply with all reasonable directions of the Supplier, in connection with the obligations of the parties under the Privacy Laws or in connection with policies (including privacy policies) developed by the Supplier from time to time to comply with the Privacy Laws;
2. comply with any direction of the Supplier, or an individual to whom the Personal Information relates, about access to, or correction of, Personal Information;
3. comply with any request or direction of the Supplier, arising directly from or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Laws, or otherwise including the issuing of any guideline about the handling of Personal Information; and
4. not disclose Personal Information overseas without the prior written consent of the Supplier, and if that consent is given, the Customer must take reasonable steps to ensure the recipient complies with the Privacy Laws and is required to comply with the directions of the Supplier about Personal Information.

  6. The Customer must immediately notify the Supplier if it becomes aware that a disclosure of Personal Information may be required by law.   The Customer’s duty   7. The Customer must take all necessary steps to ensure that:  

1. it uses and discloses Personal Information only as required by the Supplier’s privacy policy and the Privacy Laws and solely for the purpose of performing its obligations under this document;
2. the Personal Information it uses and discloses is protected against loss and against unauthorised access, use, interference, modification, disclosure or other misuse; and-
3. only personnel authorised by the Supplier have access to the Personal Information.

 

9 Liability and Indemnity

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Liability
1. Subject to clauses 9.3 and 9.6, any liability of the Supplier for loss or damage however caused (including due to the breach, act, error or negligence of the Supplier), suffered by the Customer in connection with this Agreement is limited to $100.
2. The limitation set out in clause 9.1 is an aggregate limit for all claims, whenever made.
3. Subject to clause 9.6, the Supplier is not liable for any Consequential Loss however caused (including by the negligence of the Supplier), suffered or incurred by the Customer in connection with this Agreement.
4 For clarity and without limiting clauses 9.1 and 9.3 the parties agree that clauses 9.1 and 9.3 are to apply in connection with a breach of this Agreement, anticipated breach of this Agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
5. Except as contemplated by clause 9.6, nothing in this Agreement is intended to limit any rights of the Customer under the Competition and Consumer Act 2010 (Cth)
6 If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any goods or services supplied by the Supplier in connection with this Agreement and the Supplier’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 4.4, 9.1, and 9.3 do not apply to that liability. Instead the Supplier’s liability for that failure is limited to (at the Supplier’s election):

1. in the case of a supply of goods, the Supplier replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
2. in the case of a supply of services, the Supplier supplying the services again or paying the cost of having the services supplied again.

  Indemnity   7. The Customer is liable for, and indemnifies the Supplier on demand from and against, all loss or damage (including without limitation legal costs) incurred or suffered by Supplier however caused in connection with:

1. a breach of this agreement, or the act, error or negligence of the Customer or anyone purporting to act on the Customer’s behalf;
2. any third party claims against Supplier in connection with the Customer’s use of the VoteNow Platform or the Services;
3. personal injury or death of any person (including without limitation any employee of the Customer) in connection with the use of the VoteNow Platform or the Services; or
4. damage to property in connection with the use of the VoteNow Platform or the Services.

 

10 Taxes

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Taxes   1. Subject to clause 10.3, the Customer must pay all taxes, duties, government charges and other taxes of a similar nature (including fines, penalties and interest) imposed or levied in Australia or overseas in connection with the performance of this Agreement.   GST   2. Any words capitalised in clause 10 and not already defined in clause 12 have the meaning given to those words in the GST Act   3. If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:  

1. the Recipient must pay the GST Act Supplier an amount equal to the total GST for the Supply (in addition to, and in the same manner as, the consideration otherwise payable under this Agreement for that Supply); and
2. the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.

  4. The consideration for a Supply made under or in connection with this Agreement includes GST.   5. If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.   6 Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.  

11 General

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1 The laws of Queensland govern this Agreement
2 Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts in relation to any matter arising out of or in connection with this Agreement.
3 Where the Supplier may exercise any right or discretion or make any decision under this Agreement, the Supplier may do so in its absolute discretion, conditionally or unconditionally, and without being required to give reasons or act reasonably. Clause 11.3 applies unless this Agreement expressly requires otherwise.
4 The Customer must not assign, in whole or in part, or novate the Customer’s rights and obligations under this Agreement without the prior written consent of the Supplier.
5 The Supplier may assign its interest under, or novate, this Agreement and Customer consents to same.
6 The Supplier may subcontract the performance of all or any part of the Supplier’s obligations under this Agreement.
7 Time is not of the essence in the performance of obligations under this Agreement except in relation to performance of payment obligations.
8 Unless expressly stated otherwise, this Agreement does not create a relationship of employment, trust, agency or partnership between the parties.
9 A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force.
10 If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from this Agreement in the relevant jurisdiction, but the rest of this Agreement will not be affected.
11 This Agreement supersedes all previous agreements about its subject matter. This Agreement embodies the entire agreement between the parties.
12 To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this Agreement.
13 Except as expressly set out in this Agreement, each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this Agreement.
14 A right under this Agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
15 The Customer must comply with all applicable laws in connection with receipt of the Services.

12 Definitions and Interpretation

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Interpretation   1 In this Agreement:  

1. the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
2. a reference to this Agreement includes the agreement recorded by this Agreement;
3. no rule of construction applies in the interpretation of this Agreement to the disadvantage of the party preparing the

 

10 Taxes

Definitions
2. In this Agreement:
Business Hours means 9am to 5pm AEST Monday to Friday (excluding public holidays in Queensland).
Confidential Information of a party y means the terms of this Agreement and any information:

1. relating to the business and affairs of that party;
2. relating to the customers, clients, employees, sub contractors or other persons doing business with that party;
3. which is by its nature confidential;
4. which is designated as confidential by that party; or
5. which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in
6. the case of the Supplier, includes the VoteNow Platform and the Supplier Material.

  Consequential Loss means:

1. loss of bargain;
2. loss of revenues;
3. lost opportunities, including opportunities to enter into arrangements with third parties;
4. loss of goodwill or reputation;
5. loss of profits;
6. indirect loss;
7. consequential loss;
8. loss of actual or anticipated savings;
9. loss or damage in connection with claims against the Customer by third parties; and
10. loss or corruption of data.

  Corporations Act means Corporations Act 2001 (Cth).
Customer Data means any data provided by the Customer to the Supplier or used by the Customer in connection with the VoteNow Platform.
Customer Material means the Customer Data and any material provided by or to which access is given by the Customer to the Supplier for the purposes of this Agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trade marks, logos, schedules and data stored by any means.
Documentation means any document provided by the Supplier to the Customer in connection with the VoteNow Platform.
 
Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes:

1. a physical natural disaster including fire, flood, lightning or earthquake;
2. war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
3. epidemic or quarantine restriction;
4. ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
5. confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
6. law taking effect after the date of this Agreement;
7. disruption or unavailability of the internet or any telecommunications infrastructure;
8. strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors; and
9. failure of a third party service provider to the Supplier to provide services, including hosting services.

Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, invention, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
Lot means the number of lots under management by the Customer as specified in the Schedule.
Payment Terms means the payment terms specified in the Schedule.
Personal Information has the meaning given to that term by the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time.
Privacy Laws means:

1. the Privacy Act;
2. the Australian Privacy Principles (or APPs) contained in schedule 1 Privacy Act; and
3. all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.

Related Body Corporate has the meaning given to that term by section 9 Corporations Act.
Services means the services provided by the Supplier to the Customer as contemplated by this agreement.
Software means the Vote Now software developed by the Supplier.
Supplier means Vote Now Pty Ltd ACN 606 217 801 of 14 Argyle Street, Albion, Queensland 4010.
Supplier Material means any material provided by or to which access is given by the Supplier to the Customer for the purposes of this Agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means and includes the VoteNow Platform.
Support Provider means NXTWORK PTY LTD ABN 71 286 302 771.
Support Services means services provided to the Customer from the Support Provider in relation to the Services.
Term means the term contemplated by clause 6.
Third Party Material means any material that is owned by a third party including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
VoteNow App means the Vote Now Platform accessible on mobile devices capable only of casting votes in existing campaigns.
Vote Now Platform means the Software including the Vote Now App developed by the Supplier.