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Ucroo Services & Software Licence Agreement

BACKGROUND

This UCROO Services and Software Licence Agreement (“this Agreement”) constitutes an agreement between UCROO Pty Ltd, of 5 Haverbrack Ave, Malvern, Victoria (“UCROO” “we” “us” and “our”) and  the company or person detailed in the UCROO Order Form and its Related Entities (“Customer” “you” and “your”). When Customer signs an Order Form, Customer will be bound by the terms of this Agreement and any Order Form(s) completed by it.

OPERATIVE PROVISIONS

1           DEFINITIONS AND INTERPRETATION 

1.1       Definitions

In this Agreement unless the subject matter or context otherwise requires, the following words and expressions shall have the following meanings:

this Agreement means this UCROO Services and Software Licence Agreement as amended or supplemented from time to time;

Additional Services means consulting services, technical integration of Software with educational institution systems, customisation of Software and such other assistance which are not part of the Services and which are subject to UCROO’s standard hourly rate at the time of provision;

Business means the business of developing and managing website, online and mobile application services for an educational institution social network system;

Business Day means any day that is not a Saturday or Sunday on which banks are open for general banking business in Melbourne;

Claims means all demands, Claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);

Commencement Date means the commencement of Services pursuant to an Order;

Confidential Information means all information relating of or relating to the Parties' businesses regardless of its form or whether or not disclosed or learned before or after the date of this Agreement, including:

a)          all information that is by its name confidential;

b)          all other information treated by the Parties as confidential; and

c)          all information that the receiving party knows or ought to know is confidential;

and also includes (but is not limited to) all information relating in any way to the Parties' employees, franchisees, Customers, suppliers, contracts, business operations, business processes, trade secrets, methodologies, formulae, financial affairs, projections and accounts, stock and sales information, but not including information which:

d)          was in the possession of the Recipient prior to the Parties having any dealings with each other;

e)          is in or has entered into the public domain otherwise than as a result of publication or disclosure by the Recipient or any person authorised by this Agreement; or

f)            is or has been legally and properly obtained by the Recipient from any other source, without restriction on further disclosure;

g)          was independently developed by the Recipient provided that the person(s) developing the same did not have prior access to the Confidential Information received from the Disclosing Party; or

h)          was received from a third party who had the right to disclose such information.

Control in relation to a person or entity means direct or indirect control of that person or entity, including control that is exercisable as a result of or by means of arrangement of practices whether having legal or equitable force and whether or not based on legal or equitable rights, including but not limited to a sale of substantial part or of the whole of the business on ordinary commercial terms.

Corporations Act means the Corporations Act 2001;

Customer’s Address means the registered address of the Customer;

Disclosing Party means the party that discloses the Confidential Information;

Dollars or $ means Australian dollars unless otherwise expressly provided;

End Date means the date that Services cease for a particular Order as detailed on the Order Form;

Facilities means working space, computer equipment, access to the internet and the Customer’s computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by UCROO in order to perform the Services and any Additional Services;

Fee(s) means the subscription fee payable by Customer to UCROO for an Order as detailed on an Order Form;

GST means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Intellectual Property means includes trade marks, patents, copyrights, processes, know-how, registered designs or other like rights or any right to apply for registration of any of the former;

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any patents, trade marks, registered designs, copyrights, and rights to inventions and applications for and rights to apply for protection or registrations of any of the same including any continuing, reissue, divisional and re-examination patent applications;

Losses means all Losses including financial Losses, damages, legal costs and other expenses of any nature whatsoever;

Order means an order for Services placed by a Customer by signing an Order Form, for the period of time specified on the Order Form;

Order Form means UCROO’s order form which confirms the Term, the Fee(s) and other relevant terms upon which UCROO provides the Services to the Customer and, once signed by the Customer, shall, together with this Agreement, constitute a binding agreement between UCROO and the Customer;

Party or Parties means a party to this Agreement as the context requires;

Purpose of Disclosure means the purpose of operating the Business;

Recipient means the party that receives the Confidential Information;

Related Entity has the meaning given in section 50 of the Corporations Act 2001 (Cth);

Software means the web and mobile software applications and related documentation delivered by or on behalf of UCROO including, if stated on the Order Form.

Services means the following services which UCROO provides to the Customer, upon request, on weekdays between 9am and 5pm during the Term:

a)          training and support in relation to the Software for Customer’s staff members,

b)          technical support of Software;

c)          roll-out planning of Software;

d)          liaising with staff by teleconference in relation to the above;

e)          student and staff user software support; and

Term means the duration of an Order, being the period between the Commencement Date on the Order Form, and the End Date;

Termination Date means the earlier of:

f)            the date of termination of this Agreement by either Party; and

g)          the date of expiry of this Agreement, including the Order Form.

Territory means the territory described in the Schedule;

Trade Marks means all registered and unregistered trademarks developed by or for UCROO for the purposes of the Business;

UCROO’s address means 5 Haverbrack Ave, Malvern, Victoria or such other address that UCROO uses as its registered office from time to time;

UCROO’s Personnel means any person(s) that UCROO designates to perform the Services and any Additional Services on UCROO’s behalf; and

1.2       Interpretation

In this Agreement unless the contrary intention appears:

a)          a reference to a clause, schedule, annexure or appendix is a reference to a clause of or schedule, annexure or appendix to this Agreement and references to this Agreement include any recital, schedule, annexure or appendix;

b)          a reference to this Agreement or another instrument includes any variation or replacement of either of them;

c)          reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements or any of them;

d)          the singular includes the plural and vice versa;

e)          the word “person” includes a firm, a body corporate, an unincorporated association or an authority;

f)            the word “including” is not a word of limitation’

g)          a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;

h)          if a party consists of more than one (1) person, this Agreement binds each of them severally and any two (2) or more of them jointly;

i)            an agreement, representation or warranty in favour of more than one (1) person is for the benefit of them jointly and severally;

j)            a party which is a trustee is bound both personally and in its capacity as a trustee;

k)           if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

l)            a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

m)         headings are inserted for convenience and do not affect the interpretation of this Agreement;

n)          where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

  • o)          a provision of this Agreement must not be constructed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.

 

2           SERVICES

2.1       UCROO shall provide the Services to the Customer in consideration for the Customer paying the Fee to UCROO, subject to the provisions of this Agreement.

2.2       UCROO and the Customer shall agree the time and place for the provision of the Services.

2.3       UCROO shall use reasonable endeavours to provide the Services from the Commencement Date specified in the Order Form.

2.4       The Services shall be performed by such employees or agents that UCROO may choose as most appropriate to carry out the Services.

2.5       If UCROO agrees, at the Customer’s request, to perform Additional Services, they shall be performed in the manner agreed. Unless otherwise agreed, the Customer shall pay for Additional Services in accordance with UCROO’s standard hourly rates in effect from time to time.

 

3           LOCATION

3.1       UCROO shall provide the Services and any Additional Services as required at the Customer’s address listed in the Order Form or such other location to be agreed between UCROO and the Customer.

 

4           FEE(S)

 4.1       In consideration of the provision of the Services in accordance with this Agreement, Customer will pay UCROO the Fee(s).

4.2       Customer acknowledges that, unless otherwise specified, the Fee(s) shall be exclusive of any GST that may be charged by UCROO to Customer, and therefore, UCROO will be entitled to add on GST.

4.3       UCROO shall issue a tax invoice to the Customer in accordance with the GST Law quarterly in advance in relation to Fees payable under this clause 4, and payment shall be made by Customer to UCROO within thirty (30) days from the invoice date.

4.4       The invoice referred to in sub-clause 4.3 shall include:

a)          the Commencement Date of an Order;

b)          the contact details of the issuer of the invoice

c)          the subscription type;

d)          description of Additional Services if provided; and

e)          UCROO’s ABN.

4.5       UCROO shall be entitled to vary its hourly rates for Additional Services during the term of the agreement between UCROO and Customer. Before implementing any new rates, UCROO shall provide them to Customer and they must be agreed by the parties in accordance with clause 18.12.

4.6       If Customer does not make a payment by the date specified in an invoice or as otherwise provided for in the Order Form, UCROO shall be entitled to do any of the following:

a)          charge interest on the outstanding amount at the rate of one percent (1%) per month, accruing daily;

b)          not perform any further Services (or any part of the Services).

4.7       When making a payment Customer shall quote relevant reference numbers and the invoice number.

 

5           CUSTOMER’S OBLIGATIONS

 5.1       Prior to and during the performance of the Services and any Additional Services if required, the Customer will:

a)          co-operate with UCROO as UCROO reasonably requires;

b)          provide the information and documentation that UCROO reasonably requires;

c)          ensure that Customer’s staff and agents co-operate with and assist UCROO.

5.2       Customer will not charge for UCROO’s use of the Facilities made available by Customer.

 

6           NO PARTNERSHIP OR EMPLOYMENT RELATIONSHIP

6.1       Nothing in this Agreement constitutes the relationship of employer and employee between Customer and UCROO or between Customer and UCROO’s Personnel. It is the express intention of the Parties that any such relationships are denied.

 

7           USE OF SUBCONTRACTORS

7.1       UCROO is permitted to use other persons to provide some or all of Services and any Additional Services.

7.2       UCROO shall be responsible for the work of any of UCROO’s subcontractors.

7.3       Subject to sub-clause 7.2, any work undertaken by any of UCROO’s subcontractors shall be undertaken to the same standard as stated in this Agreement and the Order Form.

7.4       To the extent that the terms of any subcontract stipulate a higher standard for any of the Services or any Additional Services than the standards set out in this Agreement (including as to timing or quality), any Services or Additional Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.

 

8           TITLE AND COPYING

8.1       All Intellectual Property Rights (including those subsisting in any computer programs, databases and documentation) in any subject matter developed or supplied by or on behalf of UCROO in the course of performing the Services and any Additional Services, including in the Software, are owned by UCROO, or the person nominated by UCROO.

8.2       Where necessary to give effect to clause 8.1, the Customer assigns to UCROO, or the person nominated by UCROO, all Intellectual Property Rights which would, but for this clause, have been owned by the Customer.

8.3       In no circumstances may any subject matter developed or supplied by or on behalf of UCROO to the Customer be disclosed to any third party not authorised by UCROO or used via or in connection with an outsourcing, service bureau or facilities management transaction without UCROO’s prior written consent.

8.4       Notwithstanding anything contained in this Agreement, the ownership of any intellectual property right which exists prior to or is developed independently of the this Agreement and made available by a party for purposes of this Agreement (Background IP) shall not be altered or transferred or assigned merely by virtue of its use for the purposes of this Agreement. Each party grants the other party a royalty-free, non-exclusive, non-transferrable licence to use its Background IP to the extent necessary to fulfil its obligations under this Agreement but for no other purpose. 

8.5       This clause will survive termination or expiry of this Agreement.

 

 

9           LICENCE

9.1       If the Customer has fully complied with this Agreement, UCROO grants the Customer a personal, non-exclusive, non-transferable licence (Licence) to use the Software, for its internal purposes.

9.2       The Licence only permits the Customer to use the version of the Software detailed in the Order Form for the Term.

9.3       The Licence only permits the Customer to grant access to the Software to:

a)              students enrolled with the Customer;

b)              current staff members of the Customer; and

c)              such other persons as agreed between UCROO and the Customer.

9.4       Nothing in this Licence will have the effect of excluding or limiting the application of sections 47B(3), 47C, 47D, 47E, 47F if the Copyright Act 1968 (Cth).

9.5       The Customer will not create or permit to exist a security interest over the Software or documentation or in any modifications to, or enhancements, updates or new releases of, the software or documentation. For the purposes of the foregoing, “security interest” means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.

 

10        CONFIDENTIALITY

 10.1    A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

10.2    Notwithstanding sub-clause 10.1, a party may disclose information to the extent that:

a)          such disclosure is forced by laws, regulations or orders; and

b)          the information is generally available in the public domain except where that is a result of a disclosure in breach of this Agreement.

10.3    If a party intends to make a disclosure under clause 10.2, the party must (if possible) do the following before making the disclosure:

a)          notify the other party of the grounds on which the party believes the disclosure is necessary and the scope of information to be disclosed; and

b)          provide the other party with a reasonable opportunity to provide its response to the information provided under clause 10.2.

10.4    On demand by UCROO, and in any event on termination of this Agreement for any reason, Customer will:

a)          deliver to UCROO all of UCROO’s Confidential Information in Customer’s possession or control; and

b)          delete all of UCROO’s Confidential Information held electronically in any medium in Customer’s possession or control.

10.5    This clause will survive termination or expiry of this Agreement.

 

11        WARRANTIES

 11.1    UCROO warrants that it will use reasonable care and skill in performing the Services and any Additional Services to the standard generally accepted within the industry in which UCROO operates for the type of Services provided by UCROO.

11.2    UCROO provides no warranty that any result or objective can or will be achieved or attained at all or by the completion date specified in the Order Form or any other date, whether stated in this Agreement or the Order Form or elsewhere.

11.3    This clause will survive termination or expiry of this Agreement.

 

12        LIABILITY AND INDEMNITY

12.1    UCROO shall not be liable for any circumstances affecting UCROO’s performance of the Services or any Additional Services which are caused by factors beyond UCROO’s reasonable control, including the Customer’s staff not having such a level of competence to provide direction to UCROO in relation to the Services and any Additional Services or to test or use subject matter delivered pursuant to this Agreement as a prudent organisation in the Customer’s position would make available in the circumstances, and also including sub-contractors’ acts or omissions. Where any third party consents are necessary or desirable to enable UCROO to perform the Services or any Additional Services, the Customer shall obtain those consents within such times as will enable UCROO to perform the Services and any Additional Services in accordance with this Agreement.

12.2    Except as provided in sub-clause 12.4 all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services and any Additional Services or this Agreement, which are not expressly stated in this Agreement are expressly excluded.

12.3    Except as set out in sub-clause 12.4, UCROO’s liability to the Customer for any breach of this Agreement, or in connection with this Agreement, shall be limited to repayment of the amounts which have been paid by the Customer to UCROO. UCROO shall not be under any further liability to the Customer in respect of any loss or damage (including consequential loss or damage) however caused (whether by UCROO’s negligence or otherwise) which may be suffered or incurred or which may arise directly in respect of the Services and any Additional Servicesor this Agreement.

12.4    Where any act of Parliament implies in this Agreement any term, condition or warranty, and that act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under, such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. UCROO’s liability for any breach of such term, condition, or warranty shall be limited, however, at UCROO’s option, to any one or more of the following:

a)          if the breach relates to goods:

i.           the replacement of the goods or the supply of equivalent goods;

ii.           the repair of the goods;

iii.           the payment of the cost of replacing the goods or of acquiring equivalent goods; or

iv.           the payment of the cost of having the goods repaired;

b)          if the breach relates to Services or Additional Services:

i.           the supply of the Services or Additional Services again; or

ii.           the payment of the cost of having the Services or Additional Services supplied again.

12.5    UCROO shall effect all insurance required to be effected by law including worker’s compensation insurance as prescribed by law for UCROO’s Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.

12.6    The Customer shall indemnify and hold harmless UCROO from and against all Claims and Losses arising from loss, damage, liability, injury to UCROO, its employees and third parties, infringement of third party Intellectual Property, or third party Losses by reasons of or arising out of any information supplied to Customer by UCROO, its employees or consultants, or supplied to UCROO by Customer within or without the scope of this Agreement.

12.7    This clause will survive termination or expiry of this Agreement.

 

13        USER SUPPORT

 13.1    UCROO agrees to provide user support to users of the Customer's UCROO network from the Commencement Date.

13.2     UCROO is only required to provide support to users that lodge a support tickets with the UCROO Support Site (support.ucroo.com.au)

13.3     Users can lodge support tickets to the UCROO Support Site via:

a)         the 'Help' widget on the UCROO website

b)         the 'Feedback/Support' tab on the UCROO Android & iPhone Applications

c)         the 'Submit a Request Form' on the UCROO Support Site 

d)        email to support@ucroo.com

13.4     Support tickets lodged on the UCROO Support Site will be first responded to within four (4) business hours of lodgement.

 

14        TERMINATION

 14.1    Either Party may terminate this Agreement by notice in writing to the other if the Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of thirty (30) days notice of the breach being given in writing by the notifying Party to the other Party.

14.2    Either Party may terminate this Agreement upon the happening of any of the following events:

a)          if Customer enters into a deed of arrangement or an order is made for it to be wound up;

b)          if an administrator, receiver or receiver/manager or a liquidator is appointed to Customer pursuant to the Corporations Act 2001 (Cth); or

c)          if Customer would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

14.3    Customer may, at its discretion, pay to UCROO the equivalent amount of the Fees payable by Customer to UCROO during the notice period in lieu of any notice period relating to termination of this Agreement under sub-clause 14.2a).

14.4    Upon termination of this Agreement any Fees, expenses or reimbursements payable by Customer to UCROO in respect of any period prior to the Termination Date must be paid by Customer within thirty (30) days after the Termination Date.

 

15        FORCE MAJEURE

15.1    UCROO is not responsible for any down time or interruptions to the Business, or any loss or damage resultant from activities beyond the control of UCROO such as power failures, war, riots, natural disasters, vandalism and other events.

 

16        DISPUTE RESOLUTION

16.1    Dispute Resolution Process

The Parties agree that a dispute arising under this deed or a contract will be dealt with as follows:

a)          the party claiming that there is a dispute will give the other party a notice setting out the nature of the dispute;

b)          within 5 business days each party will nominate a representative not having any prior involvement in the dispute;

c)          the representatives will try to settle the dispute by direct negotiation between them;

d)          failing settlement within a further 10 business days, either of the Parties may refer the dispute to an independent                     third person with power:

i.       to intervene and direct some form of resolution, in which case the Parties will be bound by that                                                          resolution; or

ii.       to mediate and recommend some form of non-binding resolution;

e)          the Parties will cooperate fully with any process instigated under clause 16.1d) in order to achieve a speedy resolution; and

f)            if a resolution is not reached within a further 20 business days, either party may commence legal proceedings.

16.2    Costs of dispute resolution

Each party will bear its own costs of complying with this clause 16 and the Parties will bear equally the cost of any third person engaged under clause 16.1d).

16.3    Performance of obligations during dispute

Despite the existence of a dispute, UCROO will (unless requested in writing by the Customer not to do so) continue to perform its obligations under this Agreement.

16.4    Interlocutory relief and right to terminate

This clause 16 does not restrict or limit the right of either party to obtain interlocutory relief, or to immediately terminate this Agreement where this Agreement provides such a right.

17        NOTICES

17.1    Giving notices

A notice, consent, information, application or request that must or may be given or made to a party under this Agreement is only given or made if it is writing and:

a)          delivered or posted to UCROO’s Address or Customer’s Address (as the case may be) or as otherwise notified by the               party, or

b)          faxed to that party at its fax number set out in the Order Form or as otherwise notified by the party ,

c)          emailed to that party at its email address set out in the Order Form or as otherwise notified by the party.

17.2    Time notice is given

A notice, consent, information, application or request is to be treated as given or made at the following time:

a)          if it is delivered, when it is left at the relevant address;

b)          if it is sent by post, 5 business days after it is posted; or

c)          if it is sent by fax, as soon as the sender receives from the sender’s fax machine a report of an error free transmission              to the correct fax number;

d)          if it is sent by email upon actual receipt by the addressee.

17.3    Transmission after Business Hours

If a notice, consent, information, application or request is delivered, or an error free transmission report in relation to it is received, after the normal business hours of the party to whom it is sent, it is to be treated as having been given or made at the beginning of the next business day.

18        MISCELLANEOUS

 18.1    Assignment

a)          The Company may at any time assign any of its rights under this Agreement.

b)          UCROO must not assign any of its rights under this Agreement without the prior written consent of the Customer.

18.2    Costs

Except as otherwise agreed by the Parties in writing, each party must pay its own costs in relation to preparing, negotiating and executing this Agreement and any document related to this Agreement.

18.3    Entire agreement

This Agreement and the accompanying Order Form contain everything the Parties have agreed on in relation to the matters it deals with, and neither party can rely on an earlier document or anything said or done by another party, or by a director, officer, agent or employee of that party, before this document was executed, save as permitted by law.

18.4    Inconsistencies

 In the event of any inconsistency between the Order Form and this Agreement, the Order Form shall prevail to the extent of the inconsistency.

 18.5    Further Assurance

Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.

18.6    Counterparts

This Agreement may be executed in counterparts.

18.7    Governing law and jurisdiction

The Agreement is governed by the law of the State of Victoria, Australia. The Parties submit to the exclusive jurisdiction of its courts. The Parties will not object to the exercise of jurisdiction by those courts on any basis.

18.8    No agency or partnership

The relationship between the Parties is that of principal and independent contractor. No party is agent, representative or partner of any other party by virtue of this Agreement. UCROO must not represent itself as an agent, representative or partner of the Customer in any circumstances.

18.9    No authority to act

No party has any power or authority to act for or to assume any obligations or responsibility on behalf of another party, to bind another party to any Agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this Agreement or by express written agreement between the Parties.

18.10 Severability

If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in latter way.  If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.

18.11 Survival of indemnities

Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the indemnifying party and survives termination of this Agreement.

18.12 Variation

No variation of this Agreement will be of any force or effect unless it is in writing and signed by the Parties to this Agreement with the exception of a variation of rates and charges which can be signed by the Parties Contract Managers.

18.13 Time

Time is of the essence as regards any date or period determined under this Agreement and if any such date or period is altered by written agreement between the Parties time is of the essence as regards such date or period as so altered.

18.14 Waiver

The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another party.  A waiver by a party is only effective if it is in writing.  A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given.  It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

 

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