1. DefinitionsIn this agreement:
- Business means the business operated by the licensee described as such in the schedule;
- Business day means a day, not being a Saturday, Sunday or gazetted public holiday, on which banks are open for commercial business where performance of an obligation under this agreement is to take place;
- Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost liability, action, proceeding, right of action, chose in action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
- Commencement date means the date so specified in the schedule or the date of execution of this agreement;
- Confidential information means all technical and other information and know how, including all information and know how in any eye or machine readable form or other format, disclosed or given to the licensee from any source in respect of or incidental to:
- The product;
- The technology;
- The licensor; and
- Any other information disclosed or given to the licensee by the licensor which is declared by the licensor to be confidential information;
- Improvements means any improvement, modification, enhancement or derivative of the Software arising during the term;
- Software means:
- The confidential information;
- The improvements;
- The patent; and
- The trade mark;
- Licensing fee means royalty, License fees or other income from third parties, for the useor grant of a License to the Software, payable to the licensor as specified in the schedule;
- Notice means a written notice, consent approval, direction, order or other communication;
- Obligation means any legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;
- Patent means the registered patent or patent application including the provisional and complete specifications described in the schedule;
- Permitted use means to conduct the business to exploit market, promote, develop, integrate, research, sell and conduct and any other activity undertaken with respect to the product for profit or reward;
- Product means the product described as such in the schedule;
- Right includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;
- Technology means all that technical information which relates to or forms part of the product, including, without limitation, methodology, techniques, drawings, outlines, notes, algorithms, detailed designs, flow charts, results, software, partial or intermediate versions and prototypes, data, formulae and other proprietary information and know how in the licensee’s possession or control or which is revealed to the licensee which relates to the product;
- Term means the term set out in the schedule; and
- Trade mark means the registered trade mark, trade mark registration application and common law trade marks described in the schedule.
- NDIS means any laws, regulations or standards under National Disability Insurance Scheme Act 2013 (Cth) or its ancillary regulations and
- Use of software includes any login remotely, via cloud or over desktop to the software Vertex 360 by the licensee, directly or indirectly
2.InterpretationThis agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State. In the interpretation of this agreement:
- References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
- Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders and references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
- Grammatical forms of defined words or phrases have corresponding meanings;
- Parties must perform their obligations on the dates and times fixed by reference to the capital city of Victoria;
- Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
- If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
- References to a party are intended to bind their heirs, executors, administrators, successors and assigns; and
- Obligations under this agreement affecting more than one party bind them jointly and each of them severally.
- Under this Agreement the Licensor grants to the Licensee a non-exclusive and non- transferable License (the “License”) to use Vertex 360 (the “Software”).
- “Software” includes the executable computer programs and any related printed, electronic and online documentation and any other files that may accompany the
- Title, copyright, Software rights and distribution rights of the Software remain exclusively with the Licensor. Software rights include the look and feel of the Software. This Agreement constitutes a License for use only and is not in any way a transfer of ownershiprights to the
- The Software may be loaded onto no more than one computer without the written consent of the Licensor. A single copy may be made for backup purposes only upon the written consent of the
- The rights and obligations of this Agreement are personal rights granted to the Licensee The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
- The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
- Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
4. Licensee’s promises
- The licensee undertakes to:
- Use its reasonable commercial endeavors to:
- Preserve the value and validity of the Software; and
- Create, promote, retain, and enhance the goodwill in the Software;
- During the term and after the termination of this agreement, not allow or facilitate the use, nor exploit the Software in a manner, or in any way, detrimental to the licensor and not contravene, deny or contest the rights subsisting in the Software, and take such steps as may be appropriate and available to the licensee to prevent the infringement of any and all the rights subsisting in the Software;
- In connection with the permitted use, not give any warranty:
- Beyond that which the licensee is obliged in law to give; or
- Which has not been approved in writing by the licensor;
- Use the Software only for the permitted use and not for any other use;
- Treat as confidential the confidential information except that which at the time of its disclosure to the licensee was generally available, or subsequently became known to the public provided always that this covenant continues in full force and effect after this agreement has terminated; and
- Devote all reasonable commercial endeavors in the conduct and operation of the
- Use its reasonable commercial endeavors to:
- The licensee agrees to fully, effectually, and promptly indemnify the licensor against any loss, either direct or indirect, damage or expense whatsoever which the licensor may suffer or incur in respect of:
- Any breach by the licensee of the provisions of this agreement; or
- Any claim by any person against the licensor arising out of or in respect of the exploitation of the Software by the licensee; and
- The licensee irrevocably releases the licensor and waives all claims which the licensee may have in the future against the licensor, in respect of any action, claim or remedy whatsoever in any way attributable to the exploitation of the Software by the
- The Software is provided by the Licensor and accepted by the Licensee “as is”. Liability of the Licensor will be limited to a maximum of the original purchase price of the Software. The Licensor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic
- The Licensor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the
- The Licensor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the
- Other than in respect of a party’s:
- Breach of the confidentiality provisions of this agreement; or
- Infringement of another party’s Software rights; or
- Indemnification obligations under this agreement; or
- Wilful misconduct;
- The licensee undertakes to:
5. ImprovementsIf the licensee develops any improvements, the licensee will notify the licensor of the nature of the same and the licensee irrevocably:
- Grants to the licensor the right to apply for any incidental Software rights available in respect of that improvement and in connection with such application, the licensee must:
- Make, supply and assist in the preparation of all models, plans, drawings or specifications necessary or convenient for the proper understanding or development of the improvements; and
- Grant and do all things necessary to give effect to an assignment of the Software rights in respect of the improvements to the licensor;
- Assigns, transfers and sets over absolutely to the licensor all right, title and interest to the improvements including all claims as they relate to the
- The licensee must allow the licensor or its nominated representative to inspect:
- The business or the product; and
- The place and method of use of the Software by the licensee;
7. Term and termination
- Termination on notice
- The exact nature of the breach committed by the defaulting party; and
- What is required by the defaulting party to remedy the breach;
- Immediate termination
- The making or filing of any application to wind up the licensee under any law or government regulation relating to bankruptcy or insolvency; or
- The appointment of a receiver, agent or manager for all or substantially all of the property of the licensee; or
- The making by the licensee of any assignment, arrangement or composition whether formal or informal for the benefit of its creditors; or
- The institution by the licensee of any proceedings for the liquidation or winding up of its business; or
- The failure to pay the License fee within seven business days of its due date for payment; or
- In any event and without the need for default by the licensee, upon giving the licensee 14 days prior written notice.
- Effect of termination
- The licensee must deliver to the licensor all documents and other materials including all copies in its possession relating to the Software, and will do such further things as may be reasonably required by the licensor to protect its right, title and interest in the Software;
- Any License fee previously paid remains the property of the licensor and will not be refunded; and
- Any License fee due but unpaid as at the date of the termination must be paid by the licensee to the
- Payment of License fee
- Variation of License fee
- Late payment
9. Warranties by licensorThe licensor warrants to the licensee that:
- The licensor has the power and authority to enter into this agreement; and
- The Software rights granted under this agreement will not when used in accordance with this agreement, infringe the Software rights of any
10. Third party claim
- Provided that the licensee is not in breach of its obligations under this agreement, if a third party makes a claim against the licensee alleging that use of the Software infringes its Software rights, the licensor will defend, indemnify and hold harmless the licensee from such a claim provided that:
- The licensee notifies the licensor in writing promptly of the claim;
- The licensee provides such information, assistance and co-operation as the licensor may reasonably request and at its expense, from time to time; and
- The licensor has full discretion to defend, compromise or settle any such claim on such terms as the licensor deems fit.
- If the licensor cannot satisfactorily settle the claim so as to retain ownership of the Software, its liability will be limited to terminating this agreement, and refunding the licensee an amount equal to the portion of any License fee paid for the period following
- Nothing in this clause authorizes the licensee to defend, compromise or settle any claim on the licensor’s behalf.
11. Other Terms and Conditions
- This Agreement can only be modified in writing signed by both the Licensor and the
- This Agreement does not create or imply any relationship in agency or partnership between the Licensor and the
- This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
- This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Licensor’s successors and
- The licensor will not be responsible for any claims or losses whatsoever arising due to loss of data if the licensee or any of its agents or employees loses login details for the
- The licensor will take all reasonable precautions against any loss of data stored on the servers, and in relation to the obligations under this agreement. However, the licensor will be free of liability to the licensee where the licensor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event including hacking or online attacks, where the licensor has taken any and all appropriate action to mitigate such an
- Technology, any other software, equipment, procurement and maintenance, required for the software is the sole responsibility of the
- The licensee must ensure that its computers, technology and equipment is well protected with an antivirus or firewall at it own
- Time is of essence in relation to the payment of usage fees for this software, any payment due to the licensor must be made within 14 days of the start of each month and the License consents to a block being placed on the software use in the event of a non-payment past this date. No action at law or equity may be brought against the licensor due to any losses incurred due to the block of the software use so applied.
- Any data including but not limited to visual, audio, photographs, medical information and information of personal and sensitive nature is deemed to be consented by the employees and clients of the licensee for the usage and storage in Vertex 360. The licensee must ensure that it has systems and procedures in place to ensure such
- The licensor will not sell or share data belonging to licensees, their participants and their employees with third parties other than its supporting partners Vertex Accounting and Consulting Pty Ltd (VAC) and AHR Legal Pty Ltd T/as Ammanah Legal for the purposes of providing Accounting and Legal advice.
- The licensor undertakes that the supporting partners are bound by the same restraint as to the sharing and sales of licensee data as provided in clause 11(11) above. To avoid doubt, the licensee may choose, not to utilize the complimentary accounting and legal advice support by notifying of the same in writing to the licensor, in which case the data will not be shared with the supporting partners VAC and Ammanah
- Vertex 360 is a tool to assist with compliance with the NDIS practice standards, however it does not guarantee compliance in any way shape or form. Appropriate resources must be utilized by the licensee to ensure its compliance with NDIS Act, standards, rules and
- It is the sole responsibility of licensee to accurately and properly use the software, obtain clarifications and training where required to assist with its compliance. The licensee indemnifies licensor from any consequential or otherwise damages at law and equity whatsoever in this regard.
- The licensor shall make available data stored relevant and pertaining to the licensee upon a written request within 30 days of such request being made and the payment of a reasonable cost for the retrieval of the data, in a format deemed suitable by the
12. AssignmentNo party may assign its rights or obligations under this agreement without the prior written consent of the other parties, which consent may be given or withheld, or given on conditions, in the absolute discretion of those other parties.
13. TimeThe parties agree that time is in all respects of the essence of this agreement.
14 . NoticesA notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
- Delivered personally; or
- Posted to their address when it will be treated as having been received on the second business day after posting; or
- Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
15. Waiver or variation
- A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or
- The exercise of a power or right does not preclude:
- Its future exercise; or
- The exercise of any other power or
- The variation or waiver of a provision of this agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the
16.Counterpart, Deemed Execution and Electronic SignaturesThis agreement may be executed in any number of counterparts each of which will be an original, but counterparts together will constitute one and the same instrument, and the date of the agreement will be the date on which it is executed by the last party. This agreement may be executed by way of electronic signatures, deemed execution, or checking a box as provided on Vertex 360 website. In this case, IP address of the or email from the Licensee will be sufficient evidence of the execution of this agreement. Deemed execution is the use of the software or continued use of the software by licensee after the expiry of any Trial period and it will be sufficient evidence of the execution of this agreement.
- Each party will pay its own costs of and incidental to this agreement or the licensor may at its absolute discretion recuse the licensee from the payment for the preparation of this
- The licensee will bear all duty payable on this agreement and keep indemnified the licensor in respect of that
- The licensee will bear all GST payable in respect of any supply under this agreement upon receipt of a tax invoice issued by the the licensor.