THE 365 RPM GROUPT PTY LTD TRADING AS
LEADMASTER AUSTRALIA, RENEWALS 365 AND REVENUE 365
GENERAL TERMS AND CONDITIONS
These terms and conditions apply to software products and services provided by The 365 RPM Group Pty Limited.
The Customer acknowledges that these terms may change from time to time and agrees to be bound by the latest published version. Customers should check the 365 RPM Group website regularly to ensure you are aware of any recent updates.
“Agreement” means the contract between 365 RPM Group and the Customer comprising these terms and conditions and the Customer’s Order Form.
“Confidential Information” means information that by its nature is confidential, is designated by a party as confidential, or which the recipient knows or ought to know is confidential.
“Customer” means a person to whom Products and Services are supplied by 365 RPM Group.
“Documentation” means all operating manuals and materials which are designed to assist or supplement the use and understanding of the Products and Services.
“Force Majeure” 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 but are not limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.
“Intellectual Property Rights” means existing and future intellectual property and industrial property rights (including, but not limited to, patents, trade marks, designs and copyright, and all other rights of a like nature).
“365 RPM Group” means The 365 RPM Group Pty Ltd ABN 80 109 061 743 trading as LeadMaster Australia, Revenue 365 and Renewals 365.
“Order Form” means the documents accepted by the Customer for placing orders hereunder, including but not limited to a 365 RPM Group Proposal or Statement of Work, including addenda and supplements thereto, which form part of these terms and conditions.
“Partner Products” means any products developed by 365 RPM Group’s partners and distributed by 365 RPM Group on their behalf.
“Partner Services” means any services developed by 365 RPM Group’s partners and distributed by 365 RPM Group on their behalf.
“Products” means any products distributed by 365 RPM Group including Partner Products, and includes any Documentation.
“Services” means any services performed and/or distributed by 365 RPM Group including Partner Services, and includes any Documentation.
2.1 Nature of Licence
The licence to use Products and Services is non-exclusive and non-transferable.
2.2 Authorised users
Customer’s use of Products and Services is limited to authorised users. Every authorised user must be:
(a) an employee of the Customer;
(b) registered with 365 RPM Group by the Customer; and
(c) the holder of an individual authorised user account with its own distinctive login and password issued by 365 RPM Group.
2.3 Increase in number of users
The Customer may increase the number of authorised users who are licensed to use the Products and Services by notifying 365 RPM Group of the number of new users to be authorised and by paying to 365 RPM Group its fee for such increase at 365 RPM Group’s then current licence fee rate.
2.5 Use of Products and Services
The Customer must ensure that:
(a) an authorised user’s account is not used by any person other than that authorised user;
(b) an authorised user’s account is not transferred to any other person;
(c) the whole or any part of the Products and Services is not made available for resale or use by any person or organization other than the Customer or the Customer’s authorised users;
(d) the whole or any part of the Products and Services are not commercially exploited by the Customer for the purposes of any other person or organisation, including (without limitation) the provision of service bureau or timeshare services; and
(e) copying, selling, licensing, distributing,assigning, transferring or otherwise making available the whole or any part of the Products and Services to any third party.
365 RPM Group reserves the right to suspend or terminate the Customer’s access to and use of the Products and Services immediately on breach of this clause.
2.6 Unauthorised use of Products and Services
The Customer shall notify 365 RPM Group immediately of any unauthorised use of an authorised user’s account or password or any other breach of security that is known to or suspected by the Customer.
2.7 Responsibility for use of Products and Services
The Customer is solely responsible for any and all use of the Products and Services through its authorised users’ accounts. 365 RPM Group is not responsible for:
(a) any unauthorised access to, or alteration of, transmissions or data, or any material, information or data sent or received, regardless of whether the data is actually received by 365 RPM Group;
(b) any transactions entered into using the Products and Services; or
(c) the consequences of any activity by the Customer in breach of this Agreement.
The term of the Agreement, unless otherwise agreed upon in writing, is for an initial period of 1 year commencing on the date of specified in the Order Form which will be automatically extended for a further period of 1 year on each anniversary of that date unless terminated by either party giving to the other not less than 90 days’ notice in writing of termination prior to the expiration of the then current term. In addition, Customers which have been billed license fees for an average of 50 or more authorised users for the previous six consecutive months or more during the Term, may terminate this Agreement by giving 365 RPM Group not less than 180 days’ notice in writing prior to the expiration of the then current Term.
4. ACCESS & SUPPORT
The Customer will access the Products and Services via the logon page on 365 RPM Group’s internet website. The Customer is responsible for providing, obtaining and maintaining all hardware, software and communications equipment and services they require to access and use the system and for paying all charges in connection therewith.
365 RPM Group can provide support, as described on the accepted Order Form, during regular business hours. 365 RPM Group will endeavour to respond to requests as described on the accepted Order Form.
4.3 Data download
365 RPM Group reserves the right to download the Customer’s database files for maintenance and backup purposes.
5. LICENCE FEES
5.1 Establishment/set up fee
The Customer must pay 365 RPM Group the establishment/set up fee(s) (if any) specified in the Order Form
5.2 Licence fees
The Customer must pay 365 RPM Group the licence fee(s) specified in the Order Form monthly in advance, or as may be mutually agreed upon, commencing on the date specified in the Order Form. Payment term shall be 7 days from date of invoice. Monthly license fees specified on the Order Form totalling 10 or fewer licenses, shall be due and payable immediately upon invoice by credit card.
5.3 Late payment
The Customer agrees to pay interest at the rate of 1.5% per month on all overdue sums from the due date until the date of payment in full.
5.4 Notice of outstanding amount
In the event a Customer is in arrears with any amount owed to 365 RPM Group under this Agreement, then 365 RPM Group has the right to suspend a Customer’s access to the Products and Services pursuant to clause 11 of this Agreement.
6. CUSTOMER’S OBLIGATIONS/RESPONSIBILITIES
The Customer warrants to 365 RPM Group that the Customer has determined the Customer’s needs, evaluated the capabilities of the Products and Services, obtained sufficient demonstrations of the Products and Services and satisfied itself as to their suitability for the Customer’s purposes before entering into this Agreement.
6.2 Intellectual Property Rights
The Customer acknowledges that they do not acquire any Intellectual Property Rights in the Products and Services supplied by 365 RPM Group.
6.3 Trade secret
The Customer acknowledges that the Products and Services and all Documentation and other written materials that are disclosed or delivered to the Customer in connection with this Agreement (collectively “Commercial Information“) are protected by copyright, are confidential and contain trade secrets and proprietary data and the Customer must preserve and ensure that its authorised users preserve the confidentiality of the Commercial Information. In particular, but without limiting the generality of the foregoing, the Customer must not and must not permit any other person:
(a) to copy, reproduce or transmit any of the Commercial Information by any means or in any form, other than user Documentation, training materials or parts thereof required for the Customer’s employees, agents or contractors to conduct their position related responsibilities;
(b) to disclose any of the Commercial Information to any person other than those of the Customer’s employees, agents or contractors who need such disclosure for the conduct of their ordinary responsibilities as employees, agents or contractors;
(c) to remove any copyright, proprietary rights, ownership identification, confidentiality or non-disclosure label or notice appearing on or in the Products or any other item of Commercial Information
6.4 Reverse engineering
The Customer will not and ensure that none of their authorised users reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Products.
The Customer agrees to allow and to procure for 365 RPM Group access to the Customer’s premises and computer system(s) during normal business hours and with reasonable prior written notice in order to verify appropriate compliance with this Agreement.
7.1 No use or disclosure of Confidential Information
Subject to clauses 7.2 and 7.3, the parties:
(a) will not disclose to a third party or use the other party’s Confidential Information, without the prior written consent of the other party; and
(b) will take all reasonable steps to ensure that their respective employees, agents and contractors do not use or disclose such information to a third party.
The obligations of confidence under clause 7.1 do not extend to information which:
(a) becomes public knowledge through no fault of that party;
(b) is already in that party’s possession prior to disclosure by the other party of that information;
(c) is independently developed by the party without the use of Confidential Information;
(d) is received by that party from a third party who had a right to disclose such information; or
(e) the party is legally compelled to disclose.
7.3 365 RPM Group exclusions
365 RPM Group may:
(a) share Confidential Information on a confidential basis with IT, financial and legal service providers engaged by 365 RPM Group to the extent reasonably necessary in order for those services providers to provide services to 365 RPM Group; and
(b) disclose that the Customer is a customer of 365 RPM Group for marketing and advertising purposes.
8. DATA PRIVACY
(c) 365 RPM Group may disclose data provided by the Customer if 365 RPM Group is compelled to do so by law, in response to a valid, legally compliant request by a law enforcement or government authority, or if required by the rules of any official stock exchange.
(d) 365 RPM Group may use and disclose data provided by the Customer in bringing any proceedings or any other actions necessary in the event that the Customer breaches its obligations under this agreement.
(e) 365 RPM Group will delete all Customer data from all systems including backups within 60 days from receiving written and verified notice from the Customer at any time and in any circumstance.
9. LIMITS OF 365 RPM GROUP’S LIABILITY
9.1 Limit of liability
If 365 RPM Group:
(a) in supplying Products to the Customer, is supplying goods to a consumer; or
(b) in supplying Services to the Customer, is supplying services to a consumer, those goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.
365 RPM Group acknowledges that if:
(a) any Products are: (i) PDH Goods; or Non PDH Goods, the purchase price for which is less than $40,000 (or such other amount specified in or prescribed under section 3 of the Australian Consumer Law from time to time); or
(b) any Services are: (i) PDH Services; or Non PDH Services, the purchase price for which is less than $40,000 (or such other amount specified in or prescribed under section 3 of the Australian Consumer Law from time to time), then, subject to the provisions of the Australian Consumer Law (including, without limitation, section 3(2)), a number of Consumer Guarantees may apply.
Nothing in this warranty should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer law or the Consumer’s right to make a claim in respect of any Consumer Guarantees or under any other provision of the Australian Consumer Law.
If the goods are Non PDH Goods or the Australian Consumer Law does not apply to the Customer’s purchase of the goods, then (to the extent permitted by law) any claim relating to the goods is limited, at the Company’s option, to: (i) the replacement of the goods; (ii) the supply of equivalent goods; (iii) the repair of the goods; (iv) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (v) the payment of the cost of having the goods repaired.
If the services are Non PDH Services or the Australian Consumer Law does not apply to the Customer’s purchase of the services, then (to the extent permitted by law) any claim relating to the services is limited, at the Company’s option, to: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
For the purposes of this clause,
“Non PDH Goods” means any goods which are not PDH Goods;
“Non PDH Services” means any services which are not PDH Services;
“PDH Goods” means any goods which, for the purposes of section 3(1) of the Australian Consumer Law, are goods of a kind ordinarily acquired for personal domestic or household use or consumption; and
“PDH Services” means any services which, for the purposes of section 3(1) of the Australian Consumer Law, are services of a kind ordinarily acquired for personal domestic or household use or consumption.
9.2 Warranties excluded
For the avoidance of doubt, 365 RPM Group excludes all other warranties and guarantees with regard to our products and services including all guarantees and warranties under law except for the guarantees that cannot be excluded under the Australian Consumer Law (and any other law).
9.3 Consequential loss
To the maximum extent permitted by law 365 RPM Group will not be liable for any ordinary, incidental, indirect, consequential, contingent or special loss or damage (including but not limited to loss of profits, loss of data,corruption of data, loss of time, inconvenience, loss of use of the Products and Services, interruption of business, economic loss, damage or injury to property or person and loss of personnel) arising out of this agreement or the use of the Products and Services, whether or not 365 RPM Group has been apprised of the likelihood of such loss or damage occurring and whether the claim arises out of an alleged breach or repudiation of contract, breach of warranty, negligence or otherwise.
10 END USER’S WARRANTY & INDEMNITY
10.1 Use of data authorised
The Customer warrants that:
(a) the Customer has and at all times will have the authority to enter any data which the Customer enters using the Products and Services;
(b) (without limiting the foregoing) all such data belongs and will belong to the Customer or to another person who has or will have duly authorised the Customer to have and to use the data; and
(c) the Customer’s use of the data will not infringe any other person’s rights or breach any law.
The Customer indemnifies and holds harmless 365 RPM Group and 365 RPM Group’s officers, employees, agents and contractors (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) any breach of the Customer’s warranty; or
(b) any breach by the Customer or the Customer’s authorised users of their obligations under this Agreement; or
(c) the Customer’s or the Customer’s authorised users’ wilful, unlawful or negligent act or omission.
11. SUSPENDED ACCESS
If a Customer is in arrears with any amount owed to 365 RPM Group pursuant to clause 5.4 of this Agreement, then 365 RPM Group at its sole and absolute discretion may, with or without notice to the Customer, suspend a Customer’s access to the Products and Services until such time as all amounts owing to 365 RPM Group have been paid.
This Agreement may be terminated by either party giving the other party (“Defaulting Party”) written notice of termination:
(a) if any sum payable by the Defaulting Party is not paid within 30 days of due date;
(b) if the Defaulting Party breaches any term of this Agreement:
(i) which is capable of remedy and fails to remedy the breach within 30 days after receipt of notice from the other party requiring its remedy; or
(ii) which is incapable of remedy;
(c) If the Defaulting Party:
(i) suffers any act of insolvency;
(ii) enters into any composition or scheme of arrangement with any of their creditors; or
(iii) has a receiver, liquidator, trustee in bankruptcy or official manager or administrator appointed in respect of any part of their business or property.
12.2 365 RPM Group’s rights on termination
Upon termination of this Agreement:
(a) each party must immediately return to the other party, all Confidential Information and other materials owned by the other party (including any copies), or where such materials are stored electronically on the party’s equipment, erase such materials; and
(b) the Customer must immediately pay any amounts for Products and Services provided by 365 RPM Group up until the date of termination that have not been paid.
12. FORCE MAJEURE
(a) Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other then payment obligations) if such delay is due to Force Majeure.
(b) If a delay or failure of a party to perform its obligations is due to Force Majeure exceeds 14 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
This Agreement may not be assigned by the Customer without 365 RPM Group’s prior written consent. However, in the event of a sale or transfer of the Customer’s business to a third party, 365 RPM Group will not unreasonably withhold consent provided the Customer supplies 365 RPM Group with any information about the proposed assignee reasonably requested by 365 RPM Group.
Those terms of this Agreement capable of having effect after termination will survive termination
If any term, or part of a term, of this Agreement is determined by a court to be invalid, unlawful or unenforceable, the Agreement shall remain in full force apart from such term or part, which shall be deemed deleted.
14. GOVERNING LAW
This Agreement is governed by the laws of New South Wales.