Documentation Toolkit - End User Terms

End User Terms

1.            Parties

The parties to this licence are:

1. SWAVLEY & ASSOCIATES PTY. LIMITED of  6/9-13 Rebecca Parade, WINSTON HILLS  NSW  2153 (“us”, “we”, and “our”); and
2. the End User (“you”)

2.            Background

1. Documentation ToolKit is a software product which operates in conjunction with Atlassian Confluence (‘Confluence’).

2. In order to make use of Documentation ToolKit you must obtain a licence to use Confluence at your own cost.

3. This licence permits you to use a locally installed version of Documentation ToolKit, or subject to payment of additional fees (and any applicable third party terms), a hosted version, which is Software as a Service.

4. Documentation ToolKit utilizes revolutionary technology which has a patent pending.

3.            Licence

1. We grant you a non-exclusive, non-transferable,licence to use Documentation ToolKit in its compiled form subject to the termsof this agreement.

2. You must not (and must not procureanother to) distribute, reproduce, sub-licence, assign, copy modify, adapt,decompile or reverse engineer Documentation ToolKit.

3. This licence commences on theexecution date and continues for as long as you pay the then current licencefee to us, unless terminated in accordance with this agreement.

4. A reference to ‘DocumentationToolKit’ includes any updates, and enhancements to it.

5. Subject to our rights in clause 15, and the terms of this licenceyou may use Documentation ToolKit for as long as you continue to pay themonthly licence fee.

6. Your use of Documentation ToolKitconfirms your agreement to these terms.

    

4.            Delivery and Installation

1. Upon your agreement to these termsand payment of your monthly licence fee, we will make Documentation ToolKitavailable for download or use, in the case of a hosted version.

2. You must, at your cost ensure that yourhardware (and software including Confluence) meets the standards andconfiguration which we specify (from time to time) in order to operate Documentation ToolKit.

5.            Fees

1. In consideration for the grant ofthis licence you must pay us our monthly license fee and set up fee, inaccordance with our price list located on our website.

2. We may charge interest on overduefees at the rate of 15% per annum compounding monthly.

3. All fees are due prior to thecommencement of a calendar month and are due on the first day of the month.

4. A reference to currency in thisLicence is a reference to Australian dollars or if purchased from outside ofAustralia, US dollars unless we say otherwise in writing.

6.            Intellectual property

1. We will at all times ownthe intellectual property rights in Documentation ToolKit, and have the legal right to use the intellectual property rights in DocumentationToolKit.

2. Any development, updates ormaintenance that we perform, whether under this licence or by separate agreementwill remain solely our intellectual property.

3. Subject to clauses 6.4 to 6.6, we will indemnifyyou against liability under any final judgment in proceedings brought by athird party against you which determines that the your use of DocumentationToolKit constitutes an infringement in Australia of any Intellectual PropertyRights in Documentation ToolKit.

4. We are not required toindemnify you as provided in clause 6.3 unless you:

   1. notify us in writing assoon as practicable of any infringement, suspected infringement or allegedinfringement;

   2. give us the option toconduct the defence of such a claim, including negotiations for settlement orcompromise prior to the institution of legal proceedings;

   3. provide us with reasonableassistance in conducting the defence of such a claim;

   4. permit us to modify, alteror substitute the infringing part of Documentation ToolKit at our own expensein order to avoid continuing infringement, or authorise us to procure for youthe authority to continue the use and possession of the infringing DocumentationToolKit software.

5. We will not indemnify youto the extent that an infringement, suspected infringement or allegedinfringement arises from:

   1. use of the DocumentationToolKit in combination by any means and in any form with other goods orservices not specifically approved by us in writing;

   2. use of DocumentationToolKit in a manner or for a purpose not reasonably contemplated or notauthorised by us in writing;

   3. your unlicensed use of anysoftware including Confluence;

   4. modification or alterationof Documentation ToolKit without our prior written consent; or

   5. any transaction enteredinto by you relating to Documentation ToolKit without our prior consent inwriting.

6. If proceedings are broughtor threatened by a third party against you, alleging that the your use of DocumentationToolKit constitutes an infringement of the third party's Intellectual PropertyRights, we may at our option and at our own expense conduct the defence of suchproceedings. You must provide all necessary co-operation, information andassistance to us in the conduct of the defence of such proceedings.

7. You must indemnify usagainst any loss, costs, expenses, demands or liability, whether direct orindirect, arising out of a claim by a third party alleging such infringementif:

   1. the claim arises from anevent specified in clause 6.5;or

   2. if our ability to defendthe claim has been prejudiced by your failure to comply with any requirementsof clause 6.4.

7.            Support and maintenance

1. We are not obliged toprovide you with (other than that expressly provided in thisAgreement):

   1. maintenance for DocumentationToolKit;

   2. updates, or patches to DocumentationToolKit;

   3. any development tointegrate Documentation ToolKitwith other applications or operating systems,

2. The monthly license feeincludes telephone support during business hours.

3. We do not warrant thatsupport will be provided in accordance with any service levels.

8.            Hosted or SaaS

Where you use Documentation ToolKit in a hosted environment:

1. We will provide you withaccess credentials to enable you to use Documentation ToolKit.

2. You must:

   1. keep your account accessdetails secure and confidential;

   2. comply with any Rules orPolicies that we may introduce from time to time;

   3. only disclose your accountaccess details to your own servants, agents or contracted consultants (your‘people’) on a need-to-know-basis;

   4. regularly change accesspasswords and keep records of all passwords used or disclosed, in accordancewith good computer security practice;

   5. if you become aware that youraccount has been compromised:

      1. change any compromisedaccess password immediately;

      2. take any other step reasonablynecessary to ensure that no-one suffers harm as a result; and

   6. keep your computer system,network and internet connectivity secure and confidential in accordance withgood computer security practice.

3. You acknowledge that:

   1. you should maintain copiesof the data you enter into Documentation ToolKit;

   2. connection to the internetposes significant security and virus threats, and that the use of regularlyupdated anti-virus software and a firewall is very important;

   3. unless we agree otherwisein writing, we do not provide service levels or uptime for these services, andthat scheduled maintenance, emergencies or unscheduled outages may occur fromtime to time which may leave the services unavailable or with limitedfunctionality; access to and use of Documentation ToolKit may be impaired orprevented by a variety of factors that are beyond our control, for instancedefects in your computer system and problems with internet connectivity betweenyou and the SaaS server –

      and we are not responsiblefor any such things or their effects. They do not constitute defects in our service.

4. You may allow your peopleto access or use Documentation ToolKit, but:

   1. their acts and omissionswith respect to Documentation ToolKit are taken to be your acts and omissions;and

   2. you must ensure that theydo not do, or fail to do, anything that would breach this licence if you did,or failed to do, that thing.

5. Regardless of whether youhave a hosted or non-hosted version of Documentation ToolKit, you consent to:

   1. us using your de-identifieddata, for statistical, audit, compliance and marketing purposes, and for anyother reason contained in these terms or our privacy policy;

   2. receiving promotional,marketing material or information updates from us, including by way of emaildelivery;

   3. disclosure by us of thisinformation to our Related Entities (as defined by section 9 of the Corporations Act 2001).

6. We may at any time suspend orlimit access to your hosted Documentation ToolKit where:

   1. we consider that there is athreat to the security and stability of Documentation ToolKit or to our hostedenvironment;

   2. we need to undertakeplanned and unplanned maintenance; or

   3. we believe there to be abreach of these terms.

7. Where we exercise ourrights under clause 8.6,we will notify you.

9.            Updates and enhancements

1. We are under no obligationunder this Agreement to provide updates or new releases, except to the extentset out in this agreement.

2. Where an update or newrelease is provided in accordance with clause 9.1:

   1. we will allow for onlinedelivery and installation of the new release;

   2. this Agreement willcontinue to apply in all respects to the update or new release which shall bedeemed to be Documentation ToolKit for the purpose of this Agreement; and

   3. you must return to us allcopies of the original Documentation ToolKit software or otherwise deal withall copies of it in accordance with our directions.

10.         Warranties andacknowledgements

1. Youwarrant to us that:

   1. youhave not relied on and do not assert any representation, warranty, promise orterm that is not set out in black and white in this agreement;

   2. youare properly authorised to enter into this agreement; and

   3. youhave independently of us, determined that the software is appropriate for yourintended use.

2. You acknowledge that:

   1. DocumentationToolKit:

      1. is not error free, and may not function or may cease to function ifmodified;

      2. may not be free of viruses, worms, Trojans or other malware.

   2. you should back up of all of your data on the hardware to avoid anycorruption or damage that may result from installation or use of DocumentationToolKit;

   3. you are solely responsible for backing up data that is input into DocumentationToolKit;

   4. we may monitor your usage activity to ensure your compliance with theseterms.

3. We warrant that:

   1. we are entitled to grant this licence; and

   2. DocumentationToolKit does not infringe any third party intellectualproperty rights;

11.         Liability and indemnities

Rights andremedies for non-PDH goods costing no more than $40,000

1. If we supply you with goods or services not of a kind ordinarilyacquired for personal, domestic or household use or consumption but costing nomore than $40,000 you have extensive rights under the Australian Consumer Lawincluding consumer guarantees and remedies but:

   1. in relation to these goods, our liability for failure to comply with aconsumer guarantee (other than certain guarantees about ownership andundisturbed use) is limited to:

      1. replacing the goods or supplying equivalent ones;

      2. repairing the goods;

      3. paying the cost of replacing the goods or of acquiring equivalent ones;or

      4. paying the cost of having the goods repaired; and

   2. in relation to these services, our liability for failure to comply witha consumer guarantee is limited to:

      1. supplying the services again; or

      2. paying the cost of having the services supplied again.

12.         Exclusion of implied termsand limitation of liability

Important consumer information:  Nothing in this clause 12limits the consumer rights and remedies referred to in clause 11.

1. Subject to clause 11:

   1. Any representation, warranty, condition or undertaking that would beimplied in your Contract by legislation, common law, equity, trade, custom orusage or otherwise is excluded from your Contract to the fullest extentpermitted by law.

   2. Weare never liable to you for, and you release us from any Claim or any ContractLoss.

2. For the purposes of these Terms:

   1. Contract Loss means loss or damage suffered by a party and arising inconnection with or out of your Contract or any supply made under it (whetherpleaded in contract, tort, breach of statutory duty or on any other basis, andwhether arising from acts or omissions, and whether or not loss or damage therisk of which another party was or should have been aware), including but notlimited to:

      1. economic loss;

      2. business interruption;

      3. loss of revenue, profits, actual or potential business opportunities orcontracts;

      4. anticipated savings;

      5. loss of profits;

      6. loss of opportunity;

      7. loss of data;

      8. indirect or consequential loss;

      9. an obligation to indemnify another person;

      10. anobligation to contribute to the compensation of loss or damage suffered byanother person.

3. The application of the United NationsConvention on Contracts for the International Sale of Goods (the ViennaConvention) to this Agreement (by virtue of any laws relevant to thisAgreement) is excluded.

1. Withoutlimiting clause 12.5, youwarrant that you have not relied on any representation made by us which has notbeen stated expressly in this Agreement, or upon any descriptions,illustrations or specifications contained in any document including cataloguesor publicity material produced by us.

2. Youacknowledge that to the extent we have made any representation which is nototherwise expressly stated in this Agreement, you have been provided with anopportunity to independently verify the accuracy of that representation.

3. Youmust at all times indemnify and hold harmless, both us and our officers,employees and agents (“those indemnified”) from and against any loss (includingreasonable legal costs and expenses) or liability reasonably incurred orsuffered by any of those indemnified arising from any proceedings against thoseindemnified where such loss or liability was caused by:

   1. abreach of your obligations under this Agreement; or

   2. anywilful, unlawful or negligent act or omission of yours or your agents andservants.

13.         Taxes

All pricing is expressed as being exclusive of GST,VAT and local taxes, you must pay all local taxes in addition to the moneypayable under the Agreement.

14.         Confidentiality

1. Each party must treat the confidential information of the other party as confidential and commercially valuable and ensure that its representatives do the same.
2. The parties must not disclose each other’s confidential information unless:
   1. there is a legal requirement to do so; or
   2. the confidential information is disclosed to employees or contractors solely for the purposes of performing this agreement.

15.         Termination

1. We may terminate this licence:

   1. if any payment due under this licence is more than 14 days overdue(there is no requirement for a demand to have been made); and

   2. if you breach any term of this agreement and have not rectified thebreach within 7 days of receiving a notice requiring rectification (this doesnot include issues of non payment to which clause 15.1.1applies);

   3. if you are in our opinion insolvent;

   4. if you breach any term of this agreement which is incapable of remedy(this does not include issues of non payment to which clause 15.1.1applies); and

   5. at will, on 30 days’ notice to you.

16.         Consequences of termination

If thisagreement is terminated in accordance with clause 15then you must deliver up to us:

1. any manuals and documentation relating to the software;

2. all media which contains the software.

17.         Force majeure

We are not responsible for the consequences of aforce majeure.

18.         Survival

Clauses 3.5, 6, 7,  10.1, 10.2, 10.1, 10.2, 11, 13, 14, 16, 20, 21, 25 and26will not merge upon termination of this agreement, and will continue to operatewith full force and effect.

19.         Notices

1. Anotice under this agreement must be written, and faxed, emailed, posted ordelivered to a party’s Service Address or personally delivered to the party ora director of an incorporated party.

2. Aparty’s Service Address is any of:

   1. itscurrent registered office (in the case of a corporation);

   2. thelast:

      1. emailaddress; or

      2. businessaddress;

         the party notified as its address for serviceof notices;

3. Anotice is deemed to have been given:

   1. ifpersonally delivered – at the time of delivery;

   2. ifhand delivered to a business address between 9 a.m. and 4:45 p.m. on a BusinessDay – on delivery;

   3. ifhand delivered to a business address other than between 9 a.m. and 4:45 p.m. ona Business Day – at 9 a.m. on the next Business Day;

   4. ifposted by ordinary mail -- at 10 a.m. on the second Business Day next followingposting;

   5. ifemailed – one hour after dispatch from the sender’s mail server or (if thatperiod expires other than between 9 a.m. and 4:45 p.m. on a Business Day) at 9a.m. on the next Business Day;

4. Fromthe date of this agreement until further notice:

   1. ourService Addresses are the addresses / numbers specified on our website www.doctoolkit.com; and

   2. your Service Addresses are the addresses /numbers specified in your service application.

20.         Costs

Each party must pay its own costs in respect ofthis agreement and anything contemplated under it, unless there is an expressprovision to the contrary.

21.         Waiver

No right under this agreement can be waived exceptby notice in writing signed by the party waiving it. It a party overlooks abreach of this agreement by the other party on one or more occasions, it is nottaken to have agreed to any future breach.

22.         Variation

We mayvary the terms of this Agreement at any time without notice.

23.         Assignment and novation

1. You cannot transfer, assign, novate orsublicense any or all of its rights, duties or obligations in this agreementto, or share them with, a third party, without our prior approval.

2. Wemay transfer, assign, novate or sublicense this agreement without your consentat any time.

24.         Inconsistency

If any term or condition of this agreement isinconsistent with the law, then the inconsistent term or condition will be readdown to the extent of the inconsistency (or severed if absolutely inconsistent)without affecting the balance of the agreement.

25.         Entire agreement

1. Thisagreement is the sole and entire agreement between the parties with respect toits subject matter, except for any other agreement which states that it is partof this agreement;

2. Any prior representations, negotiations, arrangements or understandingsare superseded by the terms of this agreement.

26.         Governing law andjurisdiction

1. Thisagreement and any dispute under or relating to it is subject exclusively to thelaw of New South Wales, Australia;

2. Anydispute under or relating to it may only be litigated in the courts of NewSouth Wales, Australia, and the parties submit to the exclusive jurisdiction ofthose courts.

27.         Interpretation

In this agreement, unless the context indicatesotherwise:

1. Dictionary

1. Ifan expression is defined in the Dictionary in clause 27.1 and iscapitalised, that is what it means.

2. Ifan expression is defined in the Dictionary, grammatical derivatives of thatexpression have a corresponding meaning. (For instance, if “ to colour” means“to paint red”, then “coloured” means “painted red”.)   

3. Headingsand footnotes are only for convenience. They are to be ignored when interpreting the agreement.

4. Areference to the singular includes the plural and vice versa.

5. Whereone thing is said to include one or more other things, it is not limited tothose other things.

6. Thereis no significance in the use of gender-specific language.

7. A“person” includes any entity which can sue and be sued.

8. A“person” includes any legal successor to or representative of that person.

9. Areference to a law includes any amendment or replacement of that law.

10. Anythinga party can do, it may do through an appropriately authorised representative.

11. Anymatter in our discretion is in our absolute and unfettered discretion.