1 Definitions and Interpretation
The following definitions apply unless the context requires otherwise.
Additional Charge means a charge in accordance with DLP Manager’s standard rates from time to time, or as otherwise reasonably determined by DLP Manager or agreed with the Partner.
Agreement means these Terms and Conditions.
Business Day means a day on which banks are generally open for business in New South Wales other than a Saturday, Sunday or public holiday.
Business Hours means 9.00am to 5.30pm Sydney time on Business Days.
Commencement Date means the commencement date of this Agreement specified in the Subscription Plan.
Confidential Information means the confidential information of a party and includes information relating to, in the case of DLP Manager:
(a) its personnel, policies and business strategies;
(b) the terms upon which the DLP Manager System and other products have been supplied, installed and/or supported pursuant to this Agreement;
(c) the pricing and payment terms set out in this Agreement;
(d) the design and content of the DLP Manager System and the Documentation; and
(e) any information made available to the Partner or an Entity via the DLP Manager System and/or the Website.
DLP Manager, we, us and our means DLP Manager Pty Ltd (ACN 640 912 732).
DLP Manager System means the innovative web based platform which enables builders, developers, developer’s owner corporations and strata corporations, subcontractors and owners to collaboratively deliver end results with consistency, efficiency and sustainability by enabling quality assurance to manage project defects, upload information and provide feedback regarding the defects, and it includes but is not limited to any and all improvements, developments, modifications, derivatives and variations of such software and/or application from time to time and where the context permits, it includes any Documentation.
Documentation means the authorised user guides, manuals and videos that are delivered or made available by DLP Manager to the Partner for use with the DLP Manager System.
Entities means the legal entity or entities (such as a company, trust, partnership or joint venture) identified in the Subscription Plan or approved in writing by DLP Manager. For the purposes of interpreting the Licence Agreement.
Event of Insolvency means:
(a) a controller, manager, trustee, administrator or similar office is appointed in respect of the Partner or an asset of the Partner;
(b) a liquidator or provisional liquidator is appointed to the Partner;
(c) any arrangement is made with the Partner’s creditors;
(d) the Partner is unable to or fails to pay its debts as and when they fall due;
(e) a default judgement is ordered against the Partner;
(f) an application is made, a resolution passed or a meeting convened for the purpose of considering a resolution to wind up the Partner; or
(g) any other similar event occurs under any law applying to the Partner.
Any of the above terms defined in the Corporations Act 2001, have the meaning assigned in that Act.
Fees means the Plan Pricing, the Maintenance and Support Fees (if any) and/or any Additional Charges, fees, charges, expenses or payments specified in this Agreement.
Force Majeure means a circumstance beyond the reasonable control of a party and which results in that party being unable to observe or perform an obligation on time under this Agreement (other than an obligation to make a payment). Such circumstances include but are not limited to:
(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, pandemics or epidemics, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) failure of internet and telecommunication services.
Initial Term means 24 months from the Commencement Date or such other period specified in the Subscription Plan.
Intellectual Property Rights means copyright, trademark, design, patent, semiconductor, circuit layout rights, the right to keep confidential information confidential and any other rights in the nature of intellectual property rights.
Maintenance and Support Fees means the maintenance and support fees (if any) specified in the Subscription Plan.
Maintenance and Support Services means the maintenance and support services (if any) specified in the Subscription Plan.
New Release means:
(a) a new release of the DLP Manager System providing for a significant change in technology; and/or
(b) a new generally available version of the DLP Manager System containing corrections of programming errors and/or functional enhancements.
Partner a building practitioner or building company or developer that is on a Subscription Plan to Use the DLP Manager System and is named as the Partner in the Subscription Plan.
Personnel means employees or contractors of the Partner and/or Entities and any other persons approved by DLP Manager.
Plan Pricing means the pricing and fees associated to the Partner’s use of the DLP Manager System as specified in the Subscription Plan.
Representative means any officer, employee, agent, consultant, contractor or other representative and includes the System Owner.
Services means any services performed by DLP Manager pu.mkb.kjg.kjbg,m rsuant to this Agreement and any other services referred to in the Subscription Plan and Maintenance and Support Services.
Subscription Plan means the subscription plan selected by the Partner as amended and varied from time to time which is outlined in detail on the Website and includes any trial offered by DLP Manager.
Subscription Plan Limit means the limitations of the Subscription Plan set out in the Subscription Plan.
System Owner means a party that DLP Manager has trained in the relevant aspects of the DLP Manager System.
Terms and Conditions means the terms and conditions set out in clauses 1 to 18 of this document.
Use means to directly or indirectly activate the processing capabilities of the DLP Manager System, load, execute, access, utilise, store, employ the DLP Manager System, or display information resulting from such capabilities.
Website means the website at www.dlpmanage.com.
2 License Grants and Restrictions
2.1 Subject to the Partner’s compliance with this Agreement, including payment of all Fees, DLP Manager grants to the Partner a non-exclusive, non-transferable licence to access and use the DLP Manager System for the Partner’s own business purposes during the term of this Agreement.
2.2 The DLP Manager System may only be used:
(a) by the Partner and Entities;
(b) by the Partner Personnel;
(c) in accordance with this Agreement up to the Subscription Limit (as varied from time to time); and
(d) in accordance with the Documentation and any written instructions from DLP Manager.
2.3 If the Partner requires to add Entities (subject to DLP Manager’s approval of the Entity), the Partner will provide DLP Manager with a written request. DLP Manager will implement the request within a reasonable time of receiving it in accordance with this Agreement.
2.4 The Partner is responsible for the use, supervision, management and control of the DLP Manager System and the Documentation.
2.5 Except as otherwise expressly permitted under this Agreement, the Partner must not (and must not allow a third party, including any Entity) to:
(a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the DLP Manager System or any portion thereof;
(b) distribute, transfer, grant sub-licences to, or otherwise make available the DLP Manager System or any portion thereof to third parties, including as an application service provider, service bureau, or rental source, unless otherwise authorised in writing by DLP Manager;
(c) embed or incorporate in any manner the DLP Manager System into other applications of the Partner or third parties other than as authorised in applicable
Documentation or by DLP Manager in writing;
(d) create modifications to or derivative works of the DLP Manager System;
(e) reproduce the DLP Manager System;
(f) attempt to modify, alter, or circumvent any licence control and protection mechanisms within the DLP Manager System;
(g) Use or transmit the DLP Manager System in violation of any applicable law, rule, or regulation;
(h) demonstrate the DLP Manager System to a competitor of DLP Manager;
(i) intentionally access, use, or copy any portion of the Documentation or the DLP Manager System to directly or indirectly develop, promote, distribute, sell, or support any product or service that is competitive with the DLP Manager System; or
(j) remove, obscure, or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink, or other designation included on any display screen within the DLP Manager System (“DLP Manager’s Marks”).
The Partner shall be responsible for all damages and liabilities incurred as a result of such actions.
3 Delivery and Acceptance
3.1 Upon the Partner’s acceptance of this Agreement and payment of any Fees in accordance with the Subscription Plan and Plan Pricing, DLP Manager will make the DLP Manager System available to the Partner for use through delivery of a password protected account. The DLP Manager System is deemed accepted upon delivery to the Partner, provided that such acceptance shall not in any way impact the warranties as provided in this Agreement.
4 Change Requests
4.1 If the Partner requires any changes or enhancements to the DLP Manager System or upgrades in the Subscription Plan, the Partner will provide DLP Manager with a written request.
4.2 If DLP Manager agrees to implement a request to change or enhance the DLP Manager System, which is a matter in DLP Manager’s sole discretion, DLP Manager will advise the Partner of DLP Manager’s proposal for implementation including the Additional Charges.
4.3 Within 30 days of receipt of DLP Manager’s proposal (or such other time as is agreed), the Partner must notify DLP Manager in writing whether the Partner accepts the proposal, after which the Partner will be deemed to have refused the proposal. If the Partner accepts the proposal the parties will sign a variation in accordance with clause 18.5.
4.4 The Partner acknowledges and agrees that DLP Manager may include any changes, enhancements or developments requested by the Partner in future New Releases.
5 Partner’s Obligations
5.1 The Partner will comply with and will be responsible for each Personnel’s compliance with the terms and conditions of this Agreement, DLP Manager’s End User Licence Agreement available via the DLP Manager System or the Website, and all applicable laws and regulations with respect to use of the DLP Manager System. The Partner shall be responsible for all loss, damage and liabilities incurred by DLP Manager as a result of failure to comply with this clause.
5.2 The Partner is responsible for procuring, installing, configuring, and maintaining all hardware and operating systems required to run the DLP Manager System, as set forth in the Documentation.
5.3 The Partner acknowledges that the operation of the DLP Manager System may not always be completely error free and without interruption. The Partner and Entities should:
(a) implement data backup and verification measures in accordance with best industry practice; and
(b) keep in force throughout the term of this Agreement appropriate insurance against any loss that may be suffered in the event of failure, defect or error in the DLP Manager System. DLP Manager is not liable for any loss suffered by the Partner as a result of a failure to comply with this requirement.
5.4 The Partner may print and make such number of copies of the Documentation as it reasonably requires to Use the DLP Manager System in accordance with this Agreement. All copies are the property of DLP Manager (or its third party licensors) and must contain all proprietary notices that appear on the original copy.
5.5 The Partner is solely responsible for any data, text, files, information, images, graphics, revies and other content or materials that the Personnel upload to the DLP Manager System (collectively, “Partner Data”). DLP Manager does not claim ownership of any Partner Data. By submitting and uploading Partner Data, the Partner grants DLP Manager a non-exclusive, worldwide, transferable, irrevocable right and licence to use, store, reproduce, modify, distribute, publicly perform, and publicly display the Partner Data for the purpose of providing the DLP Manager System and Services to the Partner, the Personnel and for deidentifying, benchmarking and reporting purposes.
6 DLP Manager’s Obligations
6.1 DLP Manager, or its third party hosting provider, will establish and maintain commercially reasonable administrative, physical, and technical safeguards designed to:
(a) protect the security and confidentiality of Partner Data;
(b) protect against anticipated threats or hazards to the security or integrity of Partner Data; and
(c) protect against unauthorised access to or use of Partner Data.
7.1 Without limiting anything else in this Agreement, in order for DLP Manager to perform any Services successfully and in a timely manner, DLP Manager requires the Partner’s timely co-operation, including:
(a) providing reasonable access to the Partner personnel, materials, information and facilities to assist DLP Manager with its Services;
(b) arranging access to third parties where applicable;
(c) ensuring that appropriate back-up, security and virus checking procedures are in place for any computer facilities the Partner provides;
(d) making senior executives available for consultation on request;
(e) providing reasonable working facilities for DLP Manager; and
(f) making decisions promptly to facilitate the performance of the Services.
7.2 Unless expressly agreed to be fixed, any timeframes for the provision of Services (including without limitation any specified in the Subscription Plan) are estimates and are not contractually binding. Estimates of time for completing the Services are given on the assumption (among other things) that DLP Manager receives the co-operation and commitment from the Partner as specified in clause 7.1.
7.3 If the Partner does not perform or delays in performing any of its obligations (including those specified in clause 7.1), DLP Manager is entitled, if it reasonably deems necessary, to vary any timetable and to pass on to the Partner any resulting costs or expenses as Additional Charges. DLP Manager will advise the Partner of any likely or foreseeable delays and give
the Partner a chance to rectify these likely delays before DLP Manager applies Additional Charges.
7.4 In the course of providing the Services, DLP Manager will rely on information supplied by the Partner or others. DLP Manager is not obliged to verify the accuracy and completeness of that information. If any information provided is materially incorrect, Additional Charges may apply.
7.5 DLP Manager is entitled to sub-contract, transfer, assign or novate any of the Services at its sole discretion.
7.6 DLP Manager may, at the Partner’s request, provide additional consulting services relating to this Agreement for an Additional Charge.
8 Fees and Payment
8.1 The Partner agrees to pay the amount specified in the Plan Pricing with respect to the Subscription Plan selected by the Partner (as varied from time to time in accordance with these Terms and Conditions).
8.2 Without limitation, Additional Charges may apply:
(a) to any upgrade in the Subscription Plan, including but not limited to an increase in the Subscription Plan Limit;
(b) to the increase in Maintenance and Support Services resulting from (a) above (if applicable):
(c) for any work required to be undertaken by DLP Manager to implement a request made under clause 2.3: and
(d) to reflect an increase in Maintenance and Support Services required as a result of the implementation of a New Release, additional modules, customisations, enhancements or features (if any).
8.3 Except for Additional Charges, which may be invoiced as and when incurred, all other Fees will be invoiced in accordance with the Subscription Plan.
8.4 DLP Manager may have security mechanisms installed into its DLP Manager System to eliminate piracy of the DLP Manager System. In using the DLP Manager System, the Partner acknowledges and understands that the DLP Manager System may include a security mechanism that can detect the installation or use of the DLP Manager System including illegal copies of the DLP Manager System, and collect and transmit data about the use of the DLP Manager System. The data collected will not include any customer data created in using the DLP Manager System. In using the DLP Manager System, you consent to such detection and collection of data, as well as its transmission and use if an illegal copy or access has been detected. DLP Manager also reserves its right to use a hardware lock device, license administration software and/or a license authorization key to control access to the DLP Manager System. You must not take steps to avoid or defeat the purpose of any such measures.
8.5 DLP Manager reserves the right to seek verification of the Subscription Plan Limits by carrying out an audit at the premises of the Partner and any Entity (“physical audit”) either itself or using an independent third party selected by DLP Manager at DLP Manager’s sole discretion and/or by using any electronic control mechanism designed for this purpose. DLP Manager will give the Partner reasonable notice of a physical audit. The Partner must, and must procure that an Entity must, provide DLP Manager or its nominated representative with access to premises, personnel and computer systems as reasonably required by DLP Manager or its nominated representative to verify the Subscription Plan Limits and that the use of the DLP Manager System is in compliance with this Agreement (and any other applicable terms). If the Partner or an Entity has exceeded the Subscription Plan Limit or the specified number of Personnel or is otherwise in breach of the Agreement (or other applicable terms), the Partner must pay all fees, costs and expenses associated with:
(a) the audit;
(b) the increase in Subscription Plan Limit; and
(c) any increase in Maintenance and Support Services, as Additional Charges. DLP Manager’s rights under this clause survive termination or expiration of this Agreement.
8.6 DLP Manager is entitled to:
(a) reimbursement of expenses for travel, accommodation or such other expenses as are properly incurred in the performance of its obligations under this Agreement as Additional Charges and will submit invoices to the Partner for any reimbursements together with all appropriate and reasonable documentation to support the claim. Where requested by the Partner, DLP Manager must obtain the Partner’s written approval of contemplated travel for the performance of the Services prior to incurring any costs and/or other expenses; and
(b) charge (as Additional Charges) for travel time which is the time taken for any DLP Manager Representative to travel from DLP Manager’s office to the Partner’s office for performance of DLP Manager’s obligations under this Agreement.
8.7 Subject to clause 8.8, the Partner must pay all invoices (without any set off, deduction or withholding whatsoever) within 14 days of the date of the invoice.
DLP Manager may charge interest on any amount not paid by the due date at a rate equal to two percent above the Corporate Overdraft Reference Rate of the Commonwealth Bank of Australia from time to time applicable for monthly charging cycles.
8.8 The Partner must notify DLP Manager of any dispute in relation to an invoice within 14 days of the date of the invoice and the reasons for the dispute or the full amount becomes due and payable in accordance with clause 8.7. If the Partner disputes in good faith any amount on an invoice, the Partner must pay the portion of the invoice not in dispute within 14 days of the date of the invoice. If it is agreed that some or all of the disputed amount was properly payable, then the Partner must immediately pay that amount together with interest in accordance with clause 8.7.
8.9 Subject to clause 8.1 to 8.8,
(a) prior to the conclusion of the Initial Term, DLP Manager will not increase the Fees; and
(b) after the conclusion of the Initial Term, DLP Manager may increase the Fees by giving the Partner written notice. Changes in Fees will be effective 30 days after the notice has been sent to the Partner.
9 Goods and Services Tax
9.1 In this clause, terms used have the meaning given to them by the GST Law as defined in Section 195-1 of the A New Tax System (Goods and Services Tay) Act 1999 (the “GST Act”).
9.2 If a party to this Agreement (the “Supplier”) makes a supply under or in connection with this Agreement and is liable by law to pay GST on that supply, the consideration otherwise
payable by the recipient of the supply will be increased by an amount equal to the GST paid or payable by the Supplier.
9.3 If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party is the amount of the reimbursable expense net of any input tax credit or reduced input tax credit to which the other party is entitled in respect of the reimbursable expense.
9.4 If a party to this Agreement has the benefit of an indemnity for a cost, expense, loss or outgoing (“indemnified cost”) under this Agreement, the indemnity is for the indemnified cost net of any input tax credit or reduced input tax credit to which that party is entitled in respect of the indemnified cost.
9.5 Each party agrees to do all things, including providing tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, set-off, rebate or refund in relation to any amount of GST paid or payable in respect of any supply under this Agreement.
9.6 Subject to the operation of this clause, all amounts in this Agreement are GST exclusive.
10.1 Except as provided in this clause, a party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
10.2 A party is not in breach of clause 10.1:
(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information; or
(b) if it discloses Confidential Information (other than of a technical nature) to its related companies, solicitors, auditors, insurers and accountants or in the case of DLP Manager, to third parties solely for the purposes of performing this Agreement.
10.3 Each party must take all reasonable steps to ensure that its employees, agents and sub-contractors do not make public or disclose the other party’s Confidential Information.
10.4 Each party agrees to promptly notify the other party of any unauthorised access to or disclosure of the Confidential Information.
10.5 The receiving party agrees that any breach of this clause may cause irreparable harm to the disclosing party, and such disclosing party shall be entitled to seek equitable relief in addition to all other remedies provided by this Agreement or available at law.
10.6 The Partner must on demand return to DLP Manager any Documentation supplied by DLP Manager in connection with this Agreement.
11.1 Subject to clauses 11.2, 11.4 and 18.6 and otherwise to the extent permitted by law:
(a) the total aggregate liability of DLP Manager to the Partner for loss or damage arising from or in relation to this Agreement, whether arising from breach of contract, tort (including negligence), in equity or otherwise, is limited to the Plan Pricing paid for the 6-month period immediately preceding the event giving rise to the loss or damage;
(b) DLP Manager is not liable to the Partner and the Partner has no right of set off, for:
(i) any loss of data, goodwill, interest, revenues, profits, contracts or any inaccuracy of data; or
(ii) any indirect, special, incidental, consequential, exemplary, punitive, or aggravated damages or loss; or
(iii) any internal costs and expenses (whether director indirect) howsoever incurred, arising from the negligence of, or any breach of this Agreement by, DLP Manager or its Representatives even if DLP Manager has been advised of the possibility that such damages may occur,
(c) DLP Manager is not liable for loss or damage arising from third party products or services.
11.2 Nothing in this Agreement limits DLP Manager’s liability to an individual for death or personal injury caused by a negligent or willful act or omission of DLP Manager or its Representatives.
11.3 No warranty, condition or term (“term”) applies to this Agreement unless it is set out in this Agreement or is implied by law and cannot be excluded, modified or restricted. Without limiting clause 11.4:
(a) the DLP Manager System is supplied on an “as is” basis; and
(b) the DLP Manager System is suitable for use in Australia only. If the Partner intends to use the DLP Manager System in, or in relation to, any other jurisdiction it does so at its own risk.
(a) any term is implied into this Agreement by law, and the law prohibits the exclusion, restriction or modification of that term or liability under it, then that term shall be deemed to be included in this Agreement;
(b) a statutory guarantee applies to goods or services supplied under this Agreement;
then, to the extent permitted by law, DLP Manager’s liability for breach of that term or guarantee is limited to (at DLP Manager’s option):
(c) in relation to services, re-supplying the services or paying for them to be re-supplied; and
(d) in relation to goods, re-supplying them, or paying for having them re-supplied.
11.5 The Partner will at all times indemnify and hold harmless DLP Manager and its Representatives from and against any loss, costs (including reasonable legal costs and expenses) or liability incurred or suffered by DLP Manager or its Representatives arising from any proceedings against DLP Manager or its Representatives where such loss, costs or liability was caused by:
(a) a breach by the Partner or an Entity of its obligations under this Agreement (or any other applicable license terms);
(b) any willful, unlawful or negligent act or omission of the Partner, an Entity or their Representatives; or
(c) a claim by a third party alleging an infringement of that third party’s Intellectual Property Rights if such infringement relates to an actor omission of the Partner, a User, an Entity or their Representatives.
12 Term and Termination
(a) This Agreement is for the Initial Term.
(b) If the Partner has paid all amounts due and owing to DLP Manager and is not in breach of this Agreement, this Agreement automatically renews for the same period of time as the Initial Term, unless otherwise terminated in accordance with clauses 12.2 or 12.3.
12.2 Immediate Termination
(a) Either party may terminate this Agreement effective upon written notice if the other party has an Event of Insolvency.
(b) DLP Manager may terminate this Agreement or any Subscription Plan effective upon written notice if:
(i) DLP Manager is required to do so by law; or
(ii) the provision of the DLP Manager System to you by DLP Manager is, in the opinion of DLP Manager, no longer commercially viable or has become impractical or unfeasible.
12.3 Termination with notice
(a) Termination by the Partner
(i) Prior to the conclusion of the Initial Term, the Partner may terminate this Agreement for any reason. Any Fees which are paid in advance are non-refundable.
(ii) After the conclusion of the Initial Term, the Partner may terminate this Agreement:
(A) if DLP Manager breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
(B) for any reason by providing DLP Manager with 60 days’ written notice.
(b) Termination/Suspension by DLP Manager
(i) DLP Manager may, at its option, suspend all Licences for the DLP Manager System and Services provided to the Partner or terminate this Agreement:
(A) if the Partner fails to pay a Fee that remains overdue after first providing the Partner with ten (10) days’ prior written notice. Any suspension by DLP Manager under the preceding sentence will not relieve the Partner of its payment obligations hereunder;
(B) if the Partner breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
(C) for any reason by providing the Partner with 60 days’ written notice.
12.4 The Partner must notify DLP Manager of:
(a) any change to the Partner’s relationship with an Entity; and
(b) any Entities to which the Agreement is no longer to apply.
12.5 DLP Manager reserves the right to terminate an Entity’s right to use the DLP Manager System after receiving a notice under clause 12.4(a) or if the Entity breaches a term of this Agreement.
12.6 On the termination or expiry of this Agreement:
(a) the Partner and any Entities must no longer use the DLP Manager System and the Documentation;
(b) the Partner must pay any outstanding Fees to DLP Manager;
(c) other than as provided in clause 14.4, DLP Manager may retain any moneys paid;
(d) DLP Manager may charge a reasonable sum for work performed up to termination in respect of which work no sum has previously been invoiced or paid;
(e) DLP Manager will be released from any further obligations under this Agreement;
(f) either party may pursue any additional or alternative remedies provided by this Agreement or law;
(g) each party must return any property (including Confidential Information) of the other; and
(h) all copies of the DLP Manager System and any Documentation must be returned to DLP Manager and permanently erased from all equipment and storage devices used by the Partner and the Entities, regardless of whether such equipment and storage devices are owned by the Partner, the Entities or a third party.
12.7 Any clauses of this Agreement which are capable of having effect after the expiration or termination of this Agreement will continue to remain in full force and effect.
13 Personal Information
13.1 Disclosure of personal information to DLP Manager is subject to the Privacy Act 1988 (“Privacy Act”). Accordingly, the Services are provided on the understanding that the Partner (and any Entities) will only disclose personal information about an individual to DLP Manager:
(a) for a purpose related to the performance of the Services;
(b) provided the Partner (or Entity) has made all disclosures required under the Privacy Act;
(c) provided the Partner (or Entity) obtained any consents required under the Privacy Act to allow DLP Manager and its Representatives to handle the information; and
(d) provided to do so would not otherwise breach the Privacy Act.
13.2 As DLP Manager relies on the Partner and an Entity to fulfil the obligations in clause 13.1, the Partner indemnifies DLP Manager and its Representatives against any claim, loss or expense resulting from the failure of the Partner or an Entity to make any disclosure or obtain any consent required under the Privacy Act or to otherwise comply with the Privacy Act.
13.3 If the performance of the Services requires a third party to supply personal information to DLP Manager on the Partner’s request, it is the Partner’s obligation to ensure that the third party complies with clause 13.1 and the Partner indemnifies DLP Manager against any claim, loss or expense resulting from that party’s failure to do so, or to otherwise comply with the Privacy Act.
14 Intellectual Property
14.1 Any Intellectual Property Rights:
(a) in the DLP Manager System;
(b) database(s) design;
(c) in the Documentation;
(d) in any changes, modifications, developments or enhancements made to the DLP Manager System or the Documentation by DLP Manager or anyone else (including Partner specific modifications);
(e) arising from DLP Manager’s provision of the Services; and
(f) on the Website,
are owned and are the sole property of DLP Manager or its licensors.
14.2 DLP Manager indemnifies the Partner against any finally awarded damages or settlement amounts approved by DLP Manager arising out of or in connection with a claim that the use of the DLP Manager System in accordance with this Agreement infringes a third party’s copyright or an Australian patent, provided that the Partner:
(a) notifies DLP Manager immediately of any infringement or claim of which it is aware and does not make any admissions without DLP Manager’s prior written consent;
(b) at DLP Manager’s request and expense, allows DLP Manager to conduct and/or settle all negotiations and litigation resulting from any such claim,
(c) assists and fully co-operates with DLP Manager in the defence or settlement of the claim; and
(d) does not take and ensures that no Entity takes any action that prejudices DLP Manager’s ability to defend or settle the claim.
14.3 Notwithstanding anything to the contrary in this Agreement, DLP Manager is not responsible or liable for any infringement of a third party’s Intellectual Property Rights if the infringement would not otherwise exist except for:
(a) the use of the DLP Manager System with any other software or equipment;
(b) any corrections to or modifications of the DLP Manager System database other than by DLP Manager (even if performed by a System Owner);
(c) modifications to the DLP Manager System in compliance with the Partner’s specifications or requirements;
(d) a failure to promptly implement a New Release made available by DLP Manager;
(e) any breach of this Agreement by the Partner or an Entity, or any unauthorised use, access or modification to the DLP Manager System by the Partner, an Entity or a third party,
and in such circumstances DLP Manager’s obligations under clause 14.2 do not apply.
14.4 If the DLP Manager System is or is likely to become the subject of a claim of infringement, DLP Manager may at its sole discretion:
(a) procure for the Partner and any Entity the right to use the DLP Manager System or the affected part of it;
(b) replace or modify the DLP Manager System to make it non infringing; or
(c) require the return of the DLP Manager System and refund to the Partner any Plan Pricing paid for the DLP Manager System for the remainder of the then current term.
14.5 If DLP Manager’s use or possession of the DLP Manager System is determined by an independent tribunal of fact or law to infringe the Intellectual Property Rights of a third person, the Partner and any Entity must cease using the DLP Manager System immediately and DLP
Manager will refund to the Partner any Plan Pricing paid for the remainder of the then current term.
14.6 To the extent permitted by law and subject to clause 18.6, clauses 14.2 to 14.5 state DLP Manager’s entire liability and the Partner’s sole and exclusive remedies for any claim of infringement of third party’s rights.
15.1 Other than with DLP Manager’s prior written consent, the Partner will not hire DLP Manager’s Representatives for employment or under a contract for services, either directly or indirectly (including by a related body corporate or through a recruitment or staffing agency). For the purposes of this clause “DLP Manager’s Representatives” means any person who is either an employee or contractor of DLP Manager, either during or for a period of twelve months after termination of, this Agreement or for twelve months after that person’s employment or engagement with DLP Manager is terminated.
15.2 The Partner must promptly notify DLP Manager if a DLP Manager’s Representative seeks to be employed or contracted by the Partner (or a related body corporate).
15.3 If despite clause 15.1, the Partner hires a DLP Manager’s Representative without DLP Manager’s consent, the Partner must immediately pay to DLP Manager an amount equal to thirty percent (30%) of the person’s remuneration on an annualised basis as at the date of the person’s termination with DLP Manager.
15.4 The Partner acknowledges and agrees that this provision is reasonable having regard to DLP Manager’s need to protect its intellectual capital and confidential information. Without limiting DLP Manager’s right to compensation under clause 15.3, the Partner acknowledges that DLP Manager may seek interlocutory relief to prohibit or restrain the Partner from any breach or threatened breach of this clause.
15.5 A breach of this clause is deemed a material breach of the Agreement for the purposes of termination.
16.1 DLP Manager may identify the Partner (and an Entity) as a customer of DLP Manager and a User of the DLP Manager System on DLP Manager’s published customer lists, web site, and in its marketing and advertising materials and announcements. DLP Manager may also include non-confidential information about the Partner’s business and implementation of the DLP Manager System. DLP Manager may release updated information from time to time.
17 Dispute Resolution
Except as is expressly provided for in this Agreement, if there is a dispute or difference between the parties arising out of or in connection with this Agreement (Dispute), then within five Business Days of a party notifying the other party in writing of the Dispute, a senior representative from each party must meet and use all reasonable endeavors acting in good faith to resolve the Dispute by joint discussions.
(a) If the Dispute is not settled within thirty (30) days of notification under clause 17.1, the parties must submit the Dispute to mediation administered by the Australian Commercial Disputes Centre.
(b) The Australian Commercial Disputes Centre’s Guidelines for Commercial Mediation apply to any mediation under this Agreement and the parties must comply with those rules.
(c) Any mediation meetings and proceedings under this clause must be held in Sydney, New South Wales.
17.3 Court proceedings and other relief
A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this clause, unless the party seeks injunctive or other interlocutory relief.
17.4 Continuation of rights and obligations
Despite the existence of a dispute or difference each party must continue to perform this Agreement.
Any notice, demand, consent or other communication (a “Notice”) given or made under this Agreement:
(a) must be in writing and signed by a person duly authorised by the Partner;
(b) must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail), by hand, by email, or by fax at the address, email, facsimile number shown in the Subscription Plan;
(c) will be conclusively taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, seven Business Days after the date of posting;
(iii) if by email, on the earlier of the Partner receiving an automated message confirming delivery or, provided no automated message is received stating that the email has not been delivered, three hours after the time the email was sent by the Partner, such time to be determined by reference to the device from which the email was sent,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or at a time that is later than 5.30 pm in the place to which the Notice is sent, it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.
(a) The terms of this Agreement shall be binding on the parties and their successors.
(b) DLP Manager or the Partner may assign its rights and obligations under this Agreement:
(i) to a third party if any part of the business of DLP Manager or the Partner is sold or transferred to that third party; and/or
(ii) provided that DLP Manager or the Partner (as applicable) can demonstrate that the assignee is able to perform its obligations under this Agreement.
DLP Manager or the Partner may not otherwise assign its rights under this Agreement without the consent of the other party and such consent will not be unreasonably withheld or delayed.
(c) Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void.
18.3 Further assurances
Each party must do anything necessary or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.
18.4 Entire Agreement
The Agreement and any variations to it embody the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations or warranties (“other understandings’) in relation to the subject matter of this Agreement are superseded by this Agreement. The Partner acknowledges and agrees that in entering into this Agreement it is not relying on any other understandings (including any express warranties) which are not expressly set out in this Agreement.
This Agreement may only be modified or supplemented by a written document executed by an authorised representative of each party.
18.6 Compliance with the Australian Consumer Law
If the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applies to any supply of goods or services under this Agreement, nothing in this Agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Competition and Consumer Act 2010.
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
(a) Any provision in this Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party.
(b) Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intention of the Parties.
18.9 Remedies cumulative
The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
18.10 No Clientship or Agency
Nothing contained or implied in this Agreement shall be construed to place the Parties in the relationship of partners, joint venturers, principal and agent, or employer and employee.
Neither Party shall have the power to assume, create, or incur liability or any obligation of any kind, express or implied, in the name of or on behalf of the other Party by virtue of this Agreement.
18.11 Governing law & Jurisdiction
(a) This Agreement is governed by and is to be construed in accordance with the laws of New South Wales.
(b) With respect to any legal action or proceedings which may be brought with respect to this Agreement or any transaction contemplated by this Agreement (each, a Relevant Action) with respect to any Partner in Australia, each party irrevocably and unconditionally:
(i) submits to and accepts, for itself and in respect of its assets, the non-exclusive jurisdiction of courts exercising jurisdiction in Sydney, New South Wales in connection with matters concerning this Agreement; and
(ii) agrees that it will not object to the venue or claim that the Relevant Action has been brought in an inconvenient forum.
(c) The United Nations Convention on Contracts for the International Sale of Goods (and any adopting legislation) does not apply to this Agreement.
18.12 Limitation of action
Subject to clause 18.6 and to the maximum extent permitted by law, other than in relation to a claim for breach of DLP Manager’s Intellectual Property Rights, no claim can be made under this Agreement more than two (2) years after;
(a) the discovery of the circumstances giving rise to the claim; or
(b) the effective date of termination of this Agreement.
18.13 Order of Priority
Where there is any conflict between documents comprising this Agreement, they will prevail in the following order (subject to any variations agreed in accordance with clause 18.5):
(a) the Subscription Plan;
(b) these Terms and Conditions;
(c) any additional documents described in the Agreement in the order listed in these Terms and Conditions, including the End User License Agreement for each Personnel.
(a) Other than in relation to clause 18.1, DLP Manager may communicate electronically with the Partner.
(b) Electronically transmitted information is not guaranteed to be secure or error free and can be adversely affected or unsafe to use. DLP Manager will not be liable in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information.
Nothing in this Agreement will prevent or restrict DLP Manager from providing services to customers other than the Partner. Without limiting the foregoing, DLP Manager may use all:
(a) skill and knowledge acquired; and
(b) ideas and methodologies developed,
during the course of performing the Services for any purposes, including to perform services for other Partners.
18.16 Force Majeure
(a) Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of a Force Majeure Event.
(b) The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.