End user licence agreement
Premier Contact Point Pty Ltd | ABN 25 639 764 464
- This Premier Contact Point End User Licence Agreement (“Agreement”) sets out the terms and conditions under which the company PREMIER CONTACT POINT PTY LTD (hereinafter named “PREMIER”) offers to provide the Premier Contact Point hosted contact centre service (Service) as specified herein to a customer (hereinafter named as “THE CUSTOMER”).
- DEFINITIONS AND INTERPRETATION
- In this Agreement, including any Schedule or Annexure, the following terms have the following meanings:
- 2.1 Agent means an employee of or contractor to THE CUSTOMER who is authorised by THE CUSTOMER to use the Service to make or receive Calls on behalf of THE CUSTOMER.
- 2.2 Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
- 2.3 Business Day means a day other than a Saturday, Sunday or a statutory national public holiday.
- 2.4 Call is defined as an inbound or outbound telephone call to or from the Service.
- 2.5 Charges means all fees, charges, costs, licence fees and any other amounts specified in this Agreement or the Schedule, including charges for Telecommunications Services and Calls.
- 2.6 Confidential Information of a Party (the Disclosing Party) means information of a confidential nature of every kind and form (including written and oral) that is treated or designated by the Disclosing Party as confidential or which would be reasonably regarded as confidential, and which is disclosed by the Disclosing Party or otherwise comes to the knowledge of the Receiving Party in connection with this Agreement. Information will not be Confidential Information where:
(a) it is in, or enters into, the public domain without any breach of this Agreement by the receiving party;
(b) it was known to the Receiving Party prior to disclosure by the Disclosing Party;
(c) it is received from a third party otherwise than in breach of an obligation to the Disclosing Party; or
(d) it was independently developed by the Receiving Part.
The terms of this Agreement are Confidential Information of both parties. The Software and the System and all documentation and instruction manuals relating to the System and the Software are PREMIER Confidential Information.
- 2.7 Corporations Act means the Corporations Act 2001 (Cth) and any amendments thereof.
- 2.8 Data means all data or information relating to THE CUSTOMER, including any Confidential Information and Personal Information and information relating to its operations, business, premises, systems, customers, employees, personnel, assets, products, sales and transactions in whatever form such data or information may exist whether entered into, stored in, generated by or processed as part of the Services.
- 2.9 Disclosing Party means a party disclosing Confidential Information to the other.
- 2.10 Insolvency Event means, subject to sections 415D, 434J and 451E of the Corporations Act, if any of the following events occur any of the following events:
(a) a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business
(b) a party ceases to carry on business
(c) a party ceases to be able to pay its debts as they become due
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party’s assets, operations or business
(e) any step is taken to enter into any arrangement between a party and its creditors; or
(f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party’s assets or business.
- 2.11 Intellectual Property Rights means:
(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
(c) confidential information and trade secrets;
(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up;
(e) proprietary rights under the Circuit Layouts Act 1989 (Cth); and
(f) all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
- 2.12 Malicious Code means code which contains a virus, worm, trojan horse or any other harmful or malicious component or program.
- 2.13 Personal Information means information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified individual or an individual who is reasonably identifiable and includes the contact name, email address, mailing address and telephone number which THE CUSTOMER provides in accordance with this Agreement and includes any such information provided about THE CUSTOMER’S customers.
- 2.15 Receiving Party means a party receiving Confidential Information from the other.
- 2.16 Related Body Corporate has the meaning given to that term in the Corporations Act.
- 2.17 Service means the Premier Contact Point hosted customer contact service and includes the initial onboarding services and support and maintenance described in the Service Agreement and which are applicable to THE CUSTOMER, which may be provided using the Software and the System.
- 2.18 Service Agreement means a separate agreement between PREMIER and THE CUSTOMER setting out further details on which the Service and any other non standard services are provided to THE CUSTOMER.
- 2.19 Service Desk Guide means PREMIER’S service desk guide setting out further details of the support provided by PREMIER to customers as part of the Service, as updated by PREMIER from time to time, a copy of which is available from PREMIER upon request.
- 2.20 Software means any software which is used to provide any part of the Service, including the ‘Premier Contact Point’ software.
- 2.21 System means the Software and all related information technology infrastructure owned by or licensed to PREMIER used in the provision of the Service.
- 2.22 Telecommunications Services means the voice channels, data services, voice services and voice carriage services provided to PREMIER by a third party telecommunications carriage service provider.
- In this Agreement, unless otherwise stated, or where the context otherwise requires:
- (a) the singular includes the plural and vice versa, and a gender includes other genders;
- (b) another grammatical form of a defined word or expression has a corresponding meaning;
- (c) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- (d) if a day on which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed of the event must occur on or by the next Business Day; and
- (e) headings are for ease of reference only and do not affect interpretation.
- VARIATIONS, PRECEDENCE OVER THE CUSTOMER TERMS
- 3.1 The terms and conditions of this Agreement represent PREMIER’s standard approach to business and do not preclude any agreed variations being made to them (including in a Service Agreement) where necessary to meet the specific requirements of THE CUSTOMER.
- 3.2 No change or modification of any of the terms or conditions herein shall be valid unless set out in writing and signed by an authorised officer of PREMIER and THE CUSTOMER.
- 3.3 Unless otherwise agreed to in writing by PREMIER, the terms and conditions of this Agreement and any Service Agreement take precedence over any additional or variant terms or conditions stated by THE CUSTOMER.
- 3.4 Acceptance by THE CUSTOMER of any offer made by PREMIER is limited to the terms and conditions stated in this document and the Service Agreement.
- 3.5 Neither PREMIER’s commencement of performance, nor provision of any other goods or services shall be deemed or construed as acceptance by PREMIER of THE CUSTOMER’s additional or variant terms or conditions.
- 3.6 This Agreement supersedes any previous agreements between PREMIER and THE CUSTOMER.
- COMMENCEMENT AND TERM
- 4.1 This Agreement commences on the date of execution of a Service Agreement and shall continue in full force and effect for the period nominated in the Service Agreement, except where otherwise terminated in accordance with this Agreement.
- 4.2 Either party may terminate this Agreement prior to the end of the then current Term if:
(a) the other party suffers an Insolvency Event
(b) the other party breaches the payment terms of the Service Agreement and fails to remedy the breach within 30 days after receiving written notice of the breach, or;
(c) the other party breaches a material term of this Agreement and fails to remedy the breach within 30 days after receiving written notice of the breach, or;
(d) the other party is affected by a force majeure event under clause 12 for longer than 30 days.
- 4.3 In the event this Agreement is terminated prior to the end of the current Term for any reason, THE CUSTOMER shall:
(a) pay the balance of any Charges due and payable up to the end of the current Term;
(b) pay any other amounts due and payable under the Agreement; and
(c) reimburse and pay PREMIER for any sunk costs or other costs, charges and expenses it incurred or is required to pay in relation to and in anticipation of the Agreement continuing for the then current Term or which are consequent upon the termination of any supply arrangements and subcontracts due to the early termination of this Agreement.
- 4.4 Upon termination of this Agreement, PREMIER may, on providing reasonable written notice in advance to THE CUSTOMER (and no less than 2 Business Days), enter THE CUSTOMER’s premises and remove any equipment or facilities owned by PREMIER.
- SCOPE OF SERVICE
- 5.1 Subject to THE CUSTOMER complying with its payment obligations under this Agreement at all times, PREMIER shall provide the Service as stated in the Schedule to this Agreement on the terms of this Agreement.
- RESPONSIBILITY OF THE CUSTOMER
- 6.1 To permit PREMIER to fulfil its Service obligations THE CUSTOMER shall:
(a) Nominate an appropriate person to be THE CUSTOMER’s contact with PREMIER regarding the Service.
(b) Provide any configuration and setup information required by PREMIER in a timely manner.
(c) Where the Service is linked to an information or communication service of THE CUSTOMER, make available on request the services of any persons who administer and operate the information or communication service at THE CUSTOMER’s site.
- 6.2 THE CUSTOMER shall pay for the cost of all Calls made and received by the Service as part of the Telecommunications Services in accordance with the applicable Service Agreement, regardless of whether they be right party, wrong party, answering machine, voicemail or network messages.
- 6.3 THE CUSTOMER shall pay for Telecommunication Services Call Charges provided by PREMIER in accordance with the applicable Service Agreement. The Telecommunication Services Call Charges include but are not limited to any carrier’s standard installation, rental, utilisation and service costs in accordance with the rates set out in the Schedule.
- 6.4 THE CUSTOMER is responsible to supply sufficient bandwidth for data connectivity to PREMIER.
- 6.5 THE CUSTOMER may not divulge any proprietary or Confidential Information pertaining to any aspect of PREMIER’s business or PREMIER’s Intellectual Property Rights, including but not limited to, any contract(s) in force between PREMIER and THE CUSTOMER, to any other person or body other than THE CUSTOMER’s authorised employees.
- 6.6 THE CUSTOMER must:
(a) comply with all reasonable directions issued by PREMIER regarding access to and use of the System, the Software and the Service;
(b) ensure that each user of the Service who accesses or uses the System, the Software or the Service is properly trained in the operation of the System, the Software and the Service;
- 6.7 THE CUSTOMER must not:
(a) allow any person (other than users and THE CUSTOMER’s customers) to access or use the System, the Software and the Service for any purpose without PREMIER’s prior written consent;
(b) modify, add to, adapt, delete or amend any part of the System, the Software or the Service without PREMIER’s prior written consent;
(c) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, or otherwise distribute all or part of the System, the Software and the Service, or any adaptation, modification or derivative of all or part of the System, the Software or the Service;
(d) reverse engineer, disassemble, or decompile the Software, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law:
(e) use the System, the Software and the Service;
(i) for any unlawful purpose;
(ii) in a manner that contravenes any applicable laws:
(f) remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the System, the Software and the Service;
(g) directly or indirectly, introduce or permit the introduction by THE CUSTOMER’s personnel (including any user) of any virus, worm, trojan or other Malicious Code into the System, the Software or the Service, or in any other manner whatsoever, corrupt, degrade or disrupt the operation of the System, the Software or the Service; or
(h) enter or upload any data, information or other materials into the System, the Software or the Service, or otherwise use the System, the Software and the Service:
(i) to engage in any activity which infringes a third party’s rights, or in a manner which interferes with the rights of any other person;
(ii) to infringe PREMIER’s Intellectual Property Rights or the Intellectual Property Rights of any third party;
(iii) in any way that is threatening, abusive, harassing, defamatory, obscene, fraudulent, misleading or deceptive or otherwise illegal; or
(iv) in any way that constitutes misuse or resale of the System, the Software and the Service or any associated material,
and THE CUSTOMER must not permit any third party to do any of the things listed in this paragraph (h).
- 6.8 THE CUSTOMER acknowledges and agrees that:
(a) the internet is accessible to anyone with the appropriate technical capability and that it is impossible to totally protect the System, the Software and the Service from the actions of third parties;
(b) THE CUSTOMER is responsible for ensuring that THE CUSTOMER’s own business information and information technology systems are protected against the actions of third parties;
(c) THE CUSTOMER is responsible for ensuring that THE CUSTOMER’s connection and the devices THE CUSTOMER is using to connect to the System, the Software and the Service are secure and free of Malicious Code;
(d) except as expressly stated in this Agreement PREMIER is not making, and that no person acting on PREMIER’S behalf has made, any warranty or representation as to the Service’s performance characteristics, merchantability or suitability for any particular purpose. All such warranties and conditions are hereby excluded to the maximum extent permitted by law;
(e) THE CUSTOMER’s purchase of the Service has not been made on the basis of any representations made by PREMIER regarding future features or functionality of the Service; and
(f) PREMIER does not warrant that THE CUSTOMER’s use of the System, the Software and the Service will be free from any interruption or delay, nor does PREMIER warrant that the System, the Software and the Service will be free from any errors, defects or faults, nor that the System, the Software and the Service will always be secure. PREMIER may temporarily suspend availability of the System, the Software and the Service where upgrades, repair or maintenance are (in PREMIER’S absolute discretion) required.
- 6.1 To permit PREMIER to fulfil its Service obligations THE CUSTOMER shall:
- CHANGES IN SYSTEM CONFIGURATION
- 7.1 In order to ensure the service delivery commitments are met, no addition or deletion to the System or change in THE CUSTOMER Data shall be allowed except in accordance with the applicable Service Agreement.
- INTELLECTUAL PROPERTY RIGHTS
- 8.1 All Intellectual Property Rights in the System, the Software and the Service and the technology used to provide them (including any materials PREMIER provides to THE CUSTOMER under this Agreement or the Service Agreement), and any amendments, improvements and enhancements thereto, are owned by PREMIER (or its relevant licensor) and will not be transferred to THE CUSTOMER under this Agreement.
- 8.2 THE CUSTOMER shall not copy, or otherwise infringe PREMIER’S Intellectual Property rights in, any part of the System, the Software, the Service or the technology (including any materials PREMIER provides to THE CUSTOMER under this Agreement) except as expressly permitted by this Agreement.
- 8.3 Subject to applicable copyright laws, THE CUSTOMER will own the Intellectual Property rights in THE CUSTOMER’S Data that is created by THE CUSTOMER as part of THE CUSTOMER’S use of the Service.
- 8.4 THE CUSTOMER grants to PREMIER a royalty-free, worldwide, transferable, irrevocable, perpetual licence to use THE CUSTOMER’S Data for the purpose of providing the Service to THE CUSTOMER.
- 8.5 PREMIER grants to THE CUSTOMER a royalty-free, non-exclusive, non-transferrable licence to use and exercise such Intellectual Property Rights in the System, the Software and the Service owned or held by PREMIER for the purposes of using the System, the Software and the Service for the term of this Agreement.
- 8.6 By giving any feedback to PREMIER, including making suggestions or requesting enhancements, THE CUSTOMER grants to PREMIER a royalty-free, worldwide, transferable, irrevocable, perpetual licence to use or incorporate any aspect of THE CUSTOMER’S feedback into the System, the Software and the Service. The licence includes a right to sub-licence.
- PERFORMANCE AND GUARANTEE
- 9.1 Where THE CUSTOMER cancels or fails to meet the requirements of this Agreement for which costs or Charges are incurred whether or not any work has been performed, THE CUSTOMER shall be liable for all such costs and Charges.
- 9.2 No guarantee is expressed or implied that quoted services or products will be provided or commissioned at any specific time. THE CUSTOMER accepts that any commitment made by PREMIER to complete work or deliver products or results at a specific time is given in accordance with and within acceptable industry practices.
- 9.3 Without limiting any other provision of this Agreement, PREMIER is relieved from its obligations under this Agreement to the extent that an Assumption is incorrect, invalid, does not occur or is not fulfilled.
- 9.4 In the event:
(a) that any Assumption is incorrect, invalid, does not occur or is not fulfilled;
(b) that a CUSTOMER responsibility or obligation is not fulfilled or delayed;
(c) of any delay on the part of THE CUSTOMER in providing any instructions, directions or inputs;
(d) of any delay in the carrying out by THE CUSTOMER of any obligations under this Agreement;
(e) of any delays to the provision of the Service which are caused or contributed to by THE CUSTOMER or any third party,
PREMIER shall be entitled to:
(f) an extension of time within which to meet any obligations imposed on it (including any performance measures or performance requirements); and
(g) an increase in the Charges to reflect any additional effort required or delay caused, with such increase in the Charges being charged at PREMIER’S then standard rates for such services/resources and will be in addition to the current Charges.
- 10.1 THE CUSTOMER is responsible for ensuring the confidentiality of any account numbers, authentication details, passwords, PINs or access keys used as part of the Service.
- 10.2 Each Receiving Party must treat as confidential and not disclose the Disclosing Party’s Confidential Information other than for the purposes of this Agreement, as provided under this clause 10 or as permitted in writing by the Disclosing Party. A Receiving Party may disclose any of the Disclosing Party’s Confidential Information to:
(a) their professional advisers, bankers, financial advisers, financiers and insurers, provided those persons undertake to keep Confidential Information disclosed confidential;
(b) comply with any applicable law or requirement of any governmental agency; or
(c) any of the Receiving Party’s employees to whom it is necessary to disclose the Confidential Information for purposes consistent with this Agreement, provided that those persons undertake to keep the Confidential Information confidential.
- 10.3 Where Confidential Information is disclosed as a result of a legal compulsion, the party making the disclosure must, to the extent possible, notify the Disclosing Party in writing prior to the disclosure.
- 10.4 Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under this clause 10, and agrees that the Disclosing Party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
- 11.2 Service Improvements. THE CUSTOMER acknowledges and agrees that PREMIER may aggregate data and information related to the performance, operation and use of the Services to create statistical analyses, to perform benchmarking, to perform research and development and to perform other similar activities (“Service Improvements”). PREMIER will not incorporate CUSTOMER’S Data in Service Improvements in a form that could identify THE CUSTOMER or THE CUSTOMER’S customers and PREMIER will use industry standard techniques to anonymise CUSTOMER Data prior to performing Service Improvements. PREMIER retains all intellectual property rights in Service Improvements and may make them publicly available.
- FORCE MAJEURE
- 12.1 THE CUSTOMER acknowledges that PREMIER shall not be liable in any way whatsoever for delays or failure in performance resulting from acts beyond the reasonable control of PREMIER. Such acts shall include but not be limited to acts of God, strikes, lock outs, labour disputes, material shortages, riots, acts of war, governmental regulation imposed after the fact, flood, fire, earthquake, power supply disturbances, blackouts or other such natural disasters.
- 12.2 The obligations of PREMIER so far as they are affected by such occurrence, and provided that it has used all reasonable diligence to overcome them, shall be suspended during the continuance of any inability so caused, and such inability shall not be a breach of this Agreement.
- EXCLUSION, LIMITATION OF LIABILITY AND INDEMNITY
- 13.1 NON EXCLUDABLE OBLIGATIONS
(a) TO THE EXTENT THAT THE CUSTOMER ACQUIRES GOODS OR SERVICES FROM PREMIER AS A CONSUMER WITHIN THE MEANING OF THE AUSTRALIAN CONSUMER LAW, THE CUSTOMER MAY HAVE CERTAIN RIGHTS AND REMEDIES (INCLUDING, WITHOUT LIMITATION, CONSUMER GUARANTEE RIGHTS) THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT.
(b) NOTHING IN THIS CLAUSE 13 OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY CONDITION, WARRANTY OR PROVISION IMPLIED BY LAW, THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER THE AUSTRALIAN CONSUMER LAW OR ANY OTHER STATUTE WHERE TO DO SO WOULD:
(i) CONTRAVENE THAT STATUTE; OR
(ii) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID,
(c) TO THE EXTENT PERMITTED BY LAW, PREMIER’S LIABILITY IN RESPECT OF NON-EXCLUDABLE OBLIGATIONS IS LIMITED TO:
(i) THE REPAIR OR, IF NECESSARY, THE REPLACEMENT OF THE SERVICE, THE SYSTEM AND THE SOFTWARE; AND
(ii) THE SUPPLYING AGAIN OF ANY SERVICES SUPPLIED UNDER THIS AGREEMENT OR PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
- 13.2 EXCEPT IN RELATION TO NON-EXCLUDABLE OBLIGATIONS:
(a) ALL CONDITIONS, WARRANTIES, GUARANTEES, RIGHTS, REMEDIES, LIABILITIES OR OTHER TERMS THAT MAY BE IMPLIED OR IMPOSED BY CUSTOM, UNDER THE GENERAL LAW OR BY STATUTE ARE EXPRESSLY EXCLUDED UNDER THIS AGREEMENT;
(b) PREMIER’S LIABILITY TO THE CUSTOMER ARISING DIRECTLY OR INDIRECTLY UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT (AND WHETHER ARISING UNDER ANY STATUTE, IN TORT (FOR NEGLIGENCE OR OTHERWISE), OR ON ANY OTHER BASIS IN LAW OR EQUITY), UNDER AN INDEMNITY OR FOR BREACH OF WARRANTY IS LIMITED AS FOLLOWS:
(i) PREMIER EXCLUDES ALL LIABILITY FOR LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, DOWNTIME COSTS, LOSS OF PROFIT, LOSS OF OR DAMAGE TO REPUTATION, LOSS UNDER OR IN RELATION TO ANY OTHER CONTRACT, LOSS OF DATA, LOSS OF USE OF DATA, LOSS OF ANTICIPATED SAVINGS OR BENEFITS, OR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, DAMAGE, COST OR EXPENSE OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION, INCURRED BY OR AWARDED AGAINST THE CUSTOMER IN RELATION TO THE SYSTEM, THE SOFTWARE AND THE SERVICE OR UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT; AND
(ii) PREMIER’S TOTAL AGGREGATE LIABILITY IN RESPECT OF THE SYSTEM, THE SOFTWARE AND THE SERVICE, OR UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, IS OTHERWISE LIMITED TO THE CHARGES PAID BY THE CUSTOMER TO PREMIER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO SUCH LIABILITY AROSE.
- 13.3 THE CUSTOMER AGREES THAT PREMIER SHALL NOT BE LIABLE FOR ANY LOSS HOWEVER OCCURRING (INCLUDING NEGLIGENCE) ARISING FROM OR IN RELATION TO:
(a) THE CUSTOMER’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE THE SYSTEM;
(b) FRAUDULENT TRANSACTIONS PROCESSED THROUGH THE SYSTEM;
(c) INTERRUPTION TO THE SERVICE OR SYSTEM BY ANY MEANS, INCLUDING, WITHOUT LIMITATION, BY WAY OF MALICIOUS CODE OR ANY OTHER TECHNOLOGY;
(d) ACTIONS OR INACTIONS OF ANY THIRD PARTY; AND
(e) THE LIMITATIONS OF THE SYSTEM, THE SOFTWARE AND THE SERVICE OR ANY OF PREMIER’S TECHNOLOGY.
- 13.4 EXCEPT IN RELATION TO NON-EXCLUDABLE OBLIGATIONS, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT PREMIER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES IN RELATION TO THE AVAILABILITY, CONTINUITY, RELIABILITY OR SECURITY OF THE SYSTEM, THE SOFTWARE AND THE SERVICE. PREMIER WILL NOT BE LIABLE IF THE SYSTEM, THE SOFTWARE AND THE SERVICE ARE UNAVAILABLE FOR ANY REASON, INCLUDING DIRECTLY OR INDIRECTLY AS A RESULT OF:
(a) TELECOMMUNICATIONS (INCLUDING TELECOMMUNICATIONS SERVICES) UNAVAILABILITY, INTERRUPTION, DELAY, BOTTLENECK, FAILURE OR FAULT;
(b) NEGLIGENT, MALICIOUS OR WILFUL ACTS OR OMISSIONS OF THIRD PARTIES (INCLUDING PREMIER’S THIRD PARTY SERVICE PROVIDERS);
(c) MAINTENANCE OR REPAIRS CARRIED OUT BY PREMIER OR ANY THIRD PARTY SERVICE PROVIDER IN RESPECT OF ANY OF THE SYSTEM, THE SOFTWARE AND THE SERVICE;
(d) SERVICES PROVIDED BY THIRD PARTIES (INCLUDING ISP SERVICES) CEASING OR BECOMING UNAVAILABLE; OR
(e) FORCE MAJEURE EVENTS.
- 13.5 THE CUSTOMER WILL INDEMNIFY PREMIER AGAINST ANY ACTION, CLAIM, LOSS, DAMAGE, LIABILITY, COST AND EXPENSE THAT MAY BE INCURRED OR SUSTAINED BY PREMIER ARISING OUT OF ANY ACT, MATTER OR THING DONE, PERMITTED OR OMITTED TO BE DONE BY THE CUSTOMER, THE CUSTOMER’S EMPLOYEES OR THE CUSTOMER’S REPRESENTATIVES IN RELATION TO:
(a) THE CUSTOMER’S BREACH OR ALLEGED BREACH OF ANY WARRANTY, REPRESENTATION OR OBLIGATION UNDER THIS AGREEMENT;
(b) THE CUSTOMER’S NEGLIGENT, FRAUDULENT OR DISHONEST ACT OR OMISSION OR WILFUL MISCONDUCT;
(c) THE RELIABILITY, ACCURACY OR LEGITIMACY OF ANY DATA;
(d) REJECTED OR FAILED TRANSACTIONS;
(e) ANY ACTION, CLAIM, LOSS, DAMAGE, LIABILITY, COST AND EXPENSE SOUGHT BY THE CUSTOMER’S CUSTOMERS AGAINST THE CUSTOMER OR PREMIER; AND
(f) THE CUSTOMER’S FAILURE OR ALLEGED FAILURE TO COMPLY WITH ANY LAWS, REGULATIONS, OR DIRECTION OF ANY GOVERNMENT OR A GOVERNMENTAL, SEMI-GOVERNMENTAL OR JUDICIAL ENTITY.
- WAIVER AND SEVERANCE
- 14.1 Any indulgence granted by PREMIER to THE CUSTOMER and any failure by PREMIER to insist upon strict performance of the Terms and Conditions in this Agreement shall not be deemed a waiver of any of PREMIER’s rights or remedies nor be deemed a waiver of any subsequent default by THE CUSTOMER. The invalidity in whole or in part of any clause in this Agreement shall not affect the validity of the remainder of such clause of this Agreement.
- ADDRESS FOR NOTICES
- 15.1 Any required notices shall be given in writing at the address of each party set forth in the Schedules hereto, or to such other address as either party may substitute by written notice to the other.
- ASSIGNMENT OF RIGHTS AND OBLIGATIONS
- 16.1 Subject to clause 16.2, neither party may assign, transfer or novate any of their rights, duties, or obligations herein without the prior written consent of the other party, which consent may not be unreasonably withheld.
- 16.2 A party may at any time assign, transfer or novate any of their rights, duties, or obligations herein to a Related Body Corporate, and the other party will do all things reasonably required by the first party to affect such assignment, transfer or novation.
- GOVERNMENT PROCUREMENT
- 17.1 Unless otherwise agreed to in writing by PREMIER in a separate Service Agreement, no government procurement regulations shall be included in this Agreement nor shall they be binding on either party.
- PCI DSS (PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS)
- 18.1 The Service is not PCI DSS compliant as it has not been designed to store, process or transmit credit cardholder data.
- 18.2 THE CUSTOMER acknowledges that it is responsible for the security of cardholder Data that it possesses or otherwise stores, processes or transmits (including on behalf of PREMIER), or to the extent that they could impact the security of PREMIER’S cardholder data environment.
- 18.3 PREMIER disclaims any liability or responsibility in respect of:
(a) data that THE CUSTOMER stores, processes or transmits on the Service including but not limited to any credit cardholder data; and
(b) any breach of the PCI DSS requirements arising from THE CUSTOMER’S storage, processing or transmission of credit cardholder data on the Service.
By using or continuing to use the Service, THE CUSTOMER acknowledges and agrees that:
- ERRORS AND OMISSIONS
- 19.1 Stenographical, typographical and clerical errors are subject to correction.
- PRECEDENCE AND GOVERNING LAW
- 20.1 The terms and conditions of this Agreement, any Service Agreement and any Schedules, Annexures and attachments constitute the entire agreement between PREMIER and THE CUSTOMER for the provision of the Service and supersede and take precedence over all prior agreements, understandings and negotiations relating to the Service. Other than updates by PREMIER to the Service Desk Guide from time to time, the conditions may not be changed or modified in any way except by an instrument in writing signed by authorised officers of THE CUSTOMER and PREMIER. This Agreement shall be governed by and construed in accordance with the law of the State of Victoria, and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria.