ENTERPRISE MASTER AGREEMENT FOR ACCESS TO EXPEDE SOFTWARE PLATFORM AND ASSOICATED SERVICES
The Effective Date of this Agreement between Customer and Provider is as of the date Customer accepted this Agreement.
The Provider owns and operates the Expede system which is a web based software as a service (SaaS) hosted from the Microsoft Azure Cloud. Within the Expede range of services it provides a SaaS Project Management Platform, the Platform and also provides associated, Supporting Services, and the Customer wishes to be granted access to the Platform and to receive the Support Services, on the terms of this Agreement.
1.1 In this Agreement:
"Affiliate" means an entity that Controls, is controlled by, or is under common Control with the relevant entity;
"Agreement" means this agreement together with any amendments or modifications that might at any time be made to it and includes all Solution Form; Service Level Agreement; Technical Specification and other attachments to it;
"Business Day" means any week day, other than a bank or public holiday in Western Australia;
"Business Hours" means between 08:30 and 17:30 local time on a Business Day;
"Charges" means the amounts payable by the Customer to the Provider under or in relation to this Agreement as set out in Solution Form;
"Confidential Information" means the Customer Confidential Information and the Provider Confidential Information;
"Control" means the legal power to control (directly or indirectly) the management of an entity and "Controlled" will be construed accordingly.
"Customer " means the company or individual named and described as such as a Party within the Form of Agreement and includes all his or her or its lawful successors, or assigns, and unless context requires otherwise includes the corporate entities controlled by Customer;
"Customer Confidential Information" means
"Customer Indemnity Event" has the meaning given to it in Clause 8.1;
"Customer Materials" all works and materials:
"Defect" means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
"Documentation" means the documentation produced by the Provider and made available to the Customer specifying how the Platform should be used;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;
"Malicious Code" means code, files, scripts, agents or software intended to do harm, including: viruses, worms, Trojan horses or any other attack methods described by OWASP;
"Access" means to gain entry to, instruct, or communicate with the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.
"Object Code" means code that is produced when an interpreter or a compiler translates Source Code into recognizable and executable machine code.
Object Code is a set of instruction codes that is understood by a computer at the lowest hardware level. Object Code is produced by a compiler that reads some higher level computer language source instructions and translates them into equivalent machine language instructions.
"Operating Specification" means the document which details the provision provided under this agreement;
"Permitted Purpose" means the upload, storage, access, download recovery and interrogation of the Customers Materials within the Platform in full compliance with this Agreement and the Acceptable Use Policy;
"Personal Data" has the meaning given to it in the Privacy Act 1998;
"Platform" means the software Platform known as EXPEDE LMC that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under this Agreement;
"Provider" means the company Expede Pty Ltd. a company incorporated in Australia (registration number ABN: 34 115 009 366 and includes all its lawful successors, or assigns.
"Provider Confidential Information" means:
"Provider Indemnity Event" has the meaning given to it in Clause 8.3,
"Services" means the Platform and services that are provided to Customer under a Solution Form and made available online by Provider including associated offline components, as described in the Documentation;
"Service Level Agreement" means an ordering document specifying the availability and reliability of the Platform being provided as specified in the Solution Form;
"Solution Form" means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and Provider, including any addenda and schedules thereto.
"Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with the Solution Form;
"Source Code" means a text listing of commands to be compiled or assembled into an executable computer program language or Object Code and
"Term" means the term of this Agreement.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
This Agreement commences on the date Customer first accepts it and continues until all Solution Forms have expired or have been terminated.
3.1 The Provider will make available the Platform to the Customer by setting up an account access code for the Customer on the Platform, and providing to the Customer login details for that account.
3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive Licence to use the Platform for the Permitted Purpose via any defined web browser in accordance with the documentation during the Term.
3.3 The Access granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
3.4 Except to the extent mandated by applicable law or expressly permitted in this Agreement, the Licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:
3.5 For the avoidance of doubt, the Customer has no right to access the Object Code or Source Code of the Platform, either during or after the Term.
3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9 The Customer must not use the Platform:
3.10 The Customer agrees that the Customer acceptance of the Agreement is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written comments made by Provider regarding functionality or features.
3.11 The Customer agrees to grant Provider a worldwide , perpetual, irrevocable, royalty-free ownership any suggestions, enhancement requests, recommendation, correction or other feedback provided by Customer or users relating to the Provider and its operation of the Services and Platform.
If you (Customer) has been granted access to a trial, Provider will make available the Expede Platform and associated Services in accordance with the Solution Form to you (Customer) on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you (Customer) registered to use the applicable services or (b) the start date of any Solution Form ordered by you (Customer) for such provisions.
ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR FREE TRAIL MAY BE PERMANENTLY LOST UNLESS YOU ORDER A SERVICE OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
Please review the Documentation during the trial period in order to become familiar with the features and functions of the Platform and Services before placing an order.
5.1 The Customer grants to the Provider a non-exclusive Licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
5.2 Subject to Clause 5.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
5.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:
In each case in any jurisdiction and under any applicable law.
5.4 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of this Agreement for the purposes of Clause 12.
6.1 The Provider will issue invoices for the charges to the Customer in accordance with the provisions of Solution Form;
6.2 The Customer will pay the charges to the Provider within the specified period within the Solution Form from the date of issue of an invoice issued in accordance with Clause 6.1
6.3 All charges stated in or in relation to this Agreement are stated exclusive of GST, unless the context requires otherwise. GST will be payable by the Customer to the Provider in addition to the principal amounts.
6.4 Charges must be paid by bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).
6.5 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:
6.6 Notwithstanding clause 12.5, the Provider may suspend access to the Platform and the provision of the services if any amounts due to be paid by the Customer to the Provider under this Agreement are overdue by more than 60 days.
7.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.
7.2 The Provider warrants and represents to the Customer:
7.3 The Customer acknowledges that:
7.4 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
8.1 Subject to the Provider's compliance with Clause 8.2, the Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause 5.3 (a "Customer Indemnity Event").
8.2 The Provider will:
8.3 Subject to the Customer's compliance with Clause 8.4, the Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 7.2 (d) (a "Provider indemnity event").
8.4 The Customer will:
Not admit liability in connection with the Provider Indemnity Event or settle the Provider Indemnity Event without the prior written consent of the Provider.
9.1 Nothing in the Agreement will:
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
9.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
9.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.
9.5 Neither party will be liable for any loss of or damage to goodwill or reputation.
9.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software.
9.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.
9.8 Neither party will be liable for any losses arising out of a Force Majeure event.
9.9 The Provider's liability in relation to any event or series of related events will not exceed The total amount paid and payable by the Customer to the Provider under the Agreement during the 3 month period immediately preceding the event or events giving rise to the claim.
9.10 The Provider's aggregate liability under the Agreement and any collateral contracts will not exceed 10% of the total amount paid and payable by the Customer to the Provider under the Agreement.
10.1 The Customer warrants that it will not disclose or upload any Personal Data to the Provider or Platform under or in connection with this Agreement.
10.2 The Provider warrants that:
11.1 The Provider will:
11.2 The Customer will:
11.3 Confidential Information of a party may be disclosed by the other party to that other party's officers and employees provided that the disclosing party will cause the recipients to maintain the confidentiality of the Confidential Information disclosed.
11.4 The obligations set out in this Clause 11; shall not apply to:
12.1 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
12.2 Either party may terminate this Agreement immediately by giving written notice to the other party if:
12.3 Either party may terminate this Agreement by giving at least 360 days written notice of termination to the other party.
12.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate this Agreement by giving at least 90 days' written notice of termination to the Customer.
12.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.
13.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 6.5, 8, 9, 1.1 to 11.4, 13 and 16.
13.2 Termination of this Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
13.3 Subject to Clause 13.5, within 7 days following the termination of the Agreement, the Provider will:
Upon Customer's receipt of the notice referred to in clause 13.3(a), Customer may elect to execute the provisions within the Solution Form to the Provider to recover all Customer Confidential Information from the Platform in its native documentation.
13.4 Subject to Clause 13.5, within 21 days following the termination of this Agreement, the Customer will:
13.5 A party may retain any document (including any electronic document) containing the confidential information of the other party after the termination of this Agreement if:
14.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address email address given below (or as notified by one party to the other in accordance with this Clause).
The Provider:
Expede Pty Ltd
Email: Notice@expede.biz
The Customer
As defined within the Form of Agreement
14.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
15.1 Where a Force Majeure event gives rise to a failure or delay in either party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure event.
15.2 A party who becomes aware of a Force Majeure event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
15.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure event.
16.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
16.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.4 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.5 Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under this Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. The assigning party will remain responsible for the due observance of all of the requirements of this Agreement, and any contravention by any assignee or successor will be deemed to be that of the assigning party. The assigning party will promptly notify the other party of any such assignment or succession. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.
16.6 Neither party will, without the other party's prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party who has been involved in the performance of this Agreement.
16.7 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party's power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
16.8 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
16.9 Subject to Clause 9.1:
16.10 This Agreement will be governed by and construed in accordance with the laws of Western Australia; and the courts of Western Australia will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
16.11 You may not access the Services or Platform if you (Customer) are Provider competitors. You (Customer) may not access the Services or Platform for the purpose of monitoring their availability, performance, functionality, or for any benchmarking or competitive purpose.
In this clause:
iii. Words defined in the GST Law have the same meaning in this clause unless specifically defined in this clause.
b All charges and amounts payable by a party to another under this Agreement are stated exclusive of GST.
c For each taxable supply under or in connection with this Agreement:
iii. The supplier will provide a valid tax invoice to the recipient in respect of the taxable supply, and will include in the tax invoice the particulars required by the GST Law.
Each party warrants and agrees that neither it nor any of its directors, officers, contractors or employees, agents or representatives has made, solicited or accepted or will make, solicit or accept, directly or indirectly:
any offer, payment, 'facilitation payment', promise to pay or authorisation of the payment of any money, or any offer, gift, promise to give or authorisation of the giving of anything of value, directly or indirectly, to or from or for the use or benefit of any official or employee of the government or of a public international organisation or to or from or for the use or benefit of any political party, official, or candidate or to or from any other person for the purpose of influencing any discretionary act or decision by such person or organisation or of gaining an undue advantage in connection with the matters which are the subject of the Agreement.
any such offer, payment, 'facilitation payment', gift, promise or authorisation to or from or for the use or benefit of any other person if the party knows, has a firm belief, or is aware that there is a high probability that the other person would use such offer, payment, gift, promise or authorisation for any of the purposes described in clause 18 above.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING AN ONLINE BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THE FORM OF AGREEMENT, THEN YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO ACT ON BEHALF OF THE COMPANY AND ITS AFFILIES AND TO BIND SUCH ENTITY TO THIS AGREEMENT.