End-user software license agreement
1.1 Agreement: These Terms and Conditions are read in conjunction with the Proposal confirmed between You and DHRP and the Service Levels. Together, these documents record our agreement in relation to the products and services to be provided to You by DHRP (Agreement).
1.2 Priority: If there is any inconsistency between these Terms and Conditions, the Proposal and/or any Service Level, the terms of the Proposal and the Terms and Conditions shall prevail in that order over the Service Levels.
2. DEFINITIONS AND INTERPRETATION
2.1 Definitions: In these Terms and Conditions, capitalised terms have the meaning given in context and, unless the context otherwise requires:
“Additional Support”means the Support Services provided by DHRP to You in accordance with clause 7.5;
“Application Support” means the Support Services provided to you by DHRP that arise primarily out of Product operation (as set out in more detail in clause 7);
“Australian Consumer Law” has the meaning given to that term in section 4 of the Competition and Consumer Act 2010 (Cth);
“Business Day” means any day which is not a Saturday, Sunday or public holiday in Melbourne, Australia;
“Cloud Product”means a Product provided to You by DHRP that is delivered in a hosted environment;
“Cloud Support”means the Support Services provided to You by DHRP that You purchase in addition to Application Support, that relates primarily to Cloud Products;
“Commencement Date” is the date our Agreement commences as set out in the Proposal;
“Compatible Hardware and Software” means hardware and Database Software meeting the minimum specification requirements specified by DHRP on its website https://DHRPglobal.com or as otherwise notified to You from time to time;
“Consumer” has the meaning given to that term in section 3 of the Australian Consumer Law;
“Customer Data” means the data inputted by You, Your Permitted Users, or DHRP on Your behalf for the purpose of using the Products or facilitating Your use of the Products;
“Database Software”means Microsoft Software and Interbase Software;
“Derivative Product” means any derivative work, technology, product or service based on the Products or any other intellectual property of DHRP;
“Equipment” means any hardware and/or other equipment provided to You by DHRP as may be required to access a Product;
“Fees” means the charges payable by You in relation to our Agreement, including those that may be required for you to obtain the benefit of Database Software;
“Force Majeure” means any circumstance beyond the reasonable control of a party which result in a party being unable to perform any obligation due under this Agreement (or in DHRP’s case, renders performance significantly uneconomical). Such circumstances include any act of God, earthquakes, floods, storms, explosions, fires and/or any natural disasters but exclude any workforce or industrial action;
“GST” means tax as defined in the A New Tax System (Goods and Services Tax) Act 1999, as applicable;
“Initial Period” means the initial period of Your licence to use a Product, as set out in the Proposal;
“Intellectual Property” means all trade marks, service marks, inventions, patents, designs, copyrights, know-how, proprietary information, trade secrets, software and all rights and interests to use any of them, and any other right or interest generally recognised as intellectual property;
“Interbase Software” means software provided by Embercado Technologies Europe Ltd that is used in connection with the Products;
“DHRP”, “we”, “us” or “our” means DHRP Level 2, 180 Albert Road; Melbourne 3205 Australia;
“Microsoft Software” means software provided by Microsoft Corporation Inc. that is used in connection with the Products;
“Network Services” means the particular form of internet access provided by DHRP to You to enable you to access Cloud Products;
“PDH Goods or Services” means goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;
“Permitted Users” means associates and employees of Your organisation and/or individuals authorised by You to access the Products for purposes connected with the conduct of Your business (or other activity for which a Product is provided) the maximum number of which is set out in the Proposal;
“Privacy Laws” means:
(a) the Privacy Act 1988 (Cth) and any code approved by the Privacy Commissioner under the Privacy Act 1988 (Cth) which binds You or DHRP or to which the parties agree to be bound; and
(b) any laws giving rise to an actionable right of privacy.
“Products” means all software provided by DHRP to You (excluding any embedded or integrated Database Software) and/or Cloud Products provided through Network Services to which DHRP grants You access (as the case requires) including any standard upgrade and new version releases of the Products which DHRP makes available to its customers from time to time;
“Proposal” means the proposal agreed between You and DHRP setting out the Products supplied to You by DHRP and the applicable Fees, licence periods, Permitted Users and other matters pertaining to these;
(a) of DHRP, has the meaning set out in Corporations Act 2001 (Cth) together with directors and shareholders of the relevant company at the Commencement Date or at any later date; and
(b) of You, where You are a company established under the laws of Australia, has the same meaning as the meaning given to Related Body Corporate in section 50 of the Corporations Act 200 (Cth), together with directors and shareholders of the relevant company at the Commencement Date or at any later date.
“Renewal Period” means the renewal period of Your licence for a Product set out in the Proposal;
“Representatives” means DHRP’s employees, consultants and contractors;
“Service Levels”means DHRP’s priority classification and response times for Support Services and performance targets for Network Services viewable at https://DHRPglobal.com/au/support-au/license-terms-and-conditions-au;
“Subscription Term” means the Initial Period and any Renewal Period(s);
“Support Services” means Application Support and/or Additional Support and /or Cloud Support (as applicable) provided by DHRP to You in accordance with clause 7;
“Third Party Software” means software owned by a third party that is not Database Software;
“Virus” means any device or thing (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices; and
“You” means the customer who purchases a licence to install, access and use the Products and Support Services pursuant to this Agreement.
2.2 Interpretation: In these Terms and Conditions, unless the context otherwise requires:
(a) headings are for convenience only and do not affect interpretation
(b) the singular includes the plural and vice versa;
(c) words denoting persons shall include any individual, principal, corporation, partnership, joint venture, association, organisation, trust, state, agency of a state, municipal authority, government or any statutory body in each case whether or not having separate legal identity;
(d) use of the terms “including”, “includes” and “include” shall be without limitation;
(e) any covenant or agreement on the part of two or more persons shall bind those persons jointly and severally;
(f) any reference to “month” or “monthly” shall mean respectively calendar month or calendar monthly;
(g) references to these Terms and Conditions or any document or statement (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time; and
(h) reference to any statute, regulation, ordinance or bylaw shall be deemed to extend to all statutes, regulations, ordinances or bylaws amending, consolidating or replacing the same.
3. USE OF PRODUCTS AND CONSUMER GUARANTEES
3.1 Grant: DHRP grants You a non-exclusive, non-transferable, terminable licence for You and/or Your Permitted Users to use the Products, subject to the terms of our Agreement.
3.2 Under the Australian Consumer Law (and other similar legislation of Australian states and territories), certain statutory guarantees are conferred in relation to the supply of goods or services to a Consumer (Consumer Guarantees). Where You (if You are a Consumer in Australia) acquire goods and services under this Agreement from DHRP and:
(a) the goods or services are PDH Goods or Services, the operation of the Consumer Guarantees cannot be, and are not in this Agreement, excluded, restricted or modified; or
(b) the goods or services are not PDH Goods or Services, DHRP limits its liability for a failure to comply with any Consumer Guarantee (other than where to do so would otherwise cause all or part of this clause to be void) to (at DHRP’s option):
(i) in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and
(ii) in the case of services, re-supplying the services or paying the cost of having the services re-supplied,
and DHRP does not exclude or limit the operation of the Consumer Guarantees under any other provision of this Agreement or in any other manner and You agree it is fair and reasonable in all the circumstances for DHRP’s liability to be so limited.
3.3 Permitted Users: You will ensure that:
(a) the number of individual users You authorise to access and use the Products shall not exceed the number of Permitted Users;
(b) each individual Permitted Users does not share their access with any other person unless that person has permanently become a Permitted User, in which case the first individual shall no longer have any right to access or use the Products; and
(c) each Permitted User shall be assigned a unique log-in name and password for their use of the Products, which shall be kept confidential.
3.4 Additions: During the Subscription Term, You may request DHRP to add new Permitted Users or new Products, subject to DHRP’s approval of this request, it shall grant You and/or the additional Permitted Users access to those Products, at the prevailing rate or such other rate agreed between the parties.
3.5 Representatives: If one of Your representatives accepts any part of this Agreement on your behalf (for example, by clicking “agree” when overseeing installation of Products) you shall be deemed to have accepted as though you had directly agreed yourself.
4.1 Term: This Agreement begins on the Commencement Date and continues for the Subscription Term (in respect of each Product) unless terminated earlier under clause 17.
4.2 Automatic renewal: Unless one party notifies the other in writing that it wishes to terminate this Agreement, at least six months prior to the expiry of the Initial Period (or any Renewal Period), this Agreement will renew automatically for the next Renewal Period (if any).
5. DELIVERY, INSTALLATION, AND ACCESS
5.1 Delivery: DHRP will deliver the Products and any Equipment to You, or provide You with the relevant information to access to the Products (as the case may be) on or before the Commencement Date.
5.2 Warranty: You warrant to DHRP that the hardware on which the Products are installed or accessed is Compatible Hardware and Software.
5.3 Systems audit: Despite clause 5.2, before DHRP delivers or grants You access to the Products, You will provide DHRP with an audit (or alternatively permit DHRP to carry out an audit itself) of your existing IT systems to determine their suitability for the Products. If Your IT systems are unsuitable for the Products, DHRP will make recommendations about how to remedy the deficiencies, and DHRP shall be entitled to delay the Commencement Date, installation and/or access until You implement DHRP’s recommendations.
5.4 Installation: DHRP shall at the time of delivery or granting access:
(a) install the Products on the Compatible Hardware and Software (if required) as You direct;
(b) convert Your existing databases into a format compatible with databases operated and supported by the Products; and
(c) setup and configure the Products ready for use at Your medical practice or business.
5.5 Customer assistance and access: To enable DHRP to perform its obligations under this clause 5, You shall provide DHRP with:
(a) reasonable access to the location where You have directed us to deliver, install and setup the Products;
(b) access to Your front desk and/or clinical database, servers, computer workstations and/or any other equipment linked to and/or used in conjunction with such database, servers and/or computer workstations (each of which shall be Compatible Hardware and Software);
(c) such assistance as may reasonably be required by DHRP; and
(d) reasonable working conditions and adequate work space.
5.6 Acceptance: You are deemed to have accepted a Product if the Product performs substantially in accordance with its accompanying documentation and specifications. You may not reject a Product if it fails because (directly or indirectly):
(a) the server and/or computer workstations on which the Products are installed or accessed is/are not Compatible Hardware and Software; or
(b) You and/or Permitted Users failed to use the Products in accordance with DHRP’s instructions, the terms of our Agreement and/or for any purpose for which they were not designed.
5.7 Risk of loss or damage: The risk of any loss or damage to the Products will pass to You when You accept the Products in accordance with this clause 5.
6.1 Ownership: DHRP retains ownership of the Equipment at all times. You must not allow any other party to have any right in or to the Equipment at any time, including by subleasing or mortgaging the Equipment, and the Equipment must stay in Your possession at all times.
6.2 Entry onto premises: DHRP or its representatives may, at any reasonable time, enter Your premises to inspect, examine or repair the Equipment.
6.3 No warranty: To the extent permitted by law and subject to clause 3.2 (where applicable), DHRP provides no warranty in respect of the Equipment (other than the manufacturer’s warranty). In the event of any failure or fault arising from a failure or malfunction of the Equipment, subject to clause 3.2 (where applicable), DHRP’s sole liability to You will be to replace the faulty Equipment.
7. SUPPORT SERVICES
7.1 Provision: Throughout the Subscription Term, DHRP will provide You with Support Services as set out in this clause 7.
7.2 Support Centre: When You require Support Services, You must contact DHRP in the first instance by calling the designated phone number. A DHRP representative will make inquiries about Your query to assess:
(a) whether Your request relates to Application Support, Additional Support or Cloud Support; and
(b) the urgency of Your request, by applying the criteria set out in the applicable Service Level.
The DHRP representative will assign Your query a support case reference number which You must retain until Your query is resolved.
7.3 Application Support: Subject to clause 7.6 and the exceptions set out herein, DHRP will use all reasonable endeavours to provide the following Application Support services to You without additional Fees:
(a) standard upgrade and new version releases of the Products which DHRP generally makes available to its customers;
(b) telephone helpdesk services during normal business hours on Business Days including:
(i) support in relation to Products, including providing reasonable assistance in investigating, diagnosing and recommending solutions for problems encountered during the use of the Products;
(ii) in relation to current versions of Database Software on a reasonable endeavours basis and to the extent the third party supplier of the Database Software provides support to DHRP. For the purposes of this clause “current versions of Database Software” shall mean the latest version available commercially or one version back;
(iii) referral of any hardware faults identified to an appropriate hardware supplier and/or hardware service provider;
(c) provision of on-site assistance if necessary, upon Your request (provided that You will pay for time and travel costs incurred by DHRP and/or its Representatives in providing such assistance).
7.4 Cloud Support: If you have purchased Cloud Products, You must also purchase Cloud Support and (subject to clause 7.6) DHRP will provide the following services to You in addition to Application Support:
(a) provision of Network Services and maintaining them in accordance with the Service Levels;
(b) management and regular maintenance (including security and anti-virus protection) of DHRP servers hosting the Cloud Products;
(c) routine backups of Your data that is integrated with the Cloud Products;
(d) standard upgrade and new version releases of the Cloud Products which DHRP generally makes available to its customers; and
(e) hosting services for non-DHRP third party products via Network Services (DHRP reserves the right to charge additional fees for this service).
7.5 Additional Support: Notwithstanding clauses 7.3 and 7.4, DHRP may in its sole discretion provide additional services to You on request and for an extra charge on a time and materials basis, subject to DHRP providing You with a quote, and You accepting that quote.
7.6 Exclusions: notwithstanding anything else in this clause 7, DHRP has no obligation to provide support services in the following circumstances, except that they may be provided or procured by DHRP (in its sole discretion) for an additional fee on a time and materials basis:
(a) maintenance, replacement or repair of Your hardware (including printers, scanners and uninterrupted power supply batteries);
(b) support for any Third Party Software or for any operating systems supplied and/or installed by third party providers;
(c) recovery of data lost or corrupted as a result of an error by You;
(d) correction of any errors and/or defects caused by:
(i) the operation of the Products in any manner other than that specified by DHRP;
(ii) Your actions or failure to carry out Your obligations under this Agreement;
(iii) Your modification, revision, variation, merger and/or alteration of the Products not previously authorised by DHRP under clause 13.3;
(iv) the improper use, operation or neglect of either the Products or the Compatible Hardware and Software or Your breach of any obligation under any maintenance agreement in respect of the Compatible Hardware and Software;
(v) modifications to and/or customisation of any software not provided to You by DHRP;
(e) if You use the Products on equipment other than Compatible Hardware and Software;
(f) if You fail to install and use any standard upgrade or new version release of a Product;
(g) support for modifications or customisations of any software not provided to You by DHRP;
(h) if You fail to undertake correct database backups and restoration in accordance with the recommended frequency separately notified to You by DHRP; and
(i) if You do not otherwise follow instructions reasonably provided to You by DHRP.
7.7 Non-payment: DHRP is entitled to withhold the provision of Support Services if You fail to make any payment due under this Agreement.
8. OBLIGATIONS OF THE PARTIES
8.1 DHRP’s obligations: DHRP will use all reasonable endeavours to perform its obligations in this Agreement with reasonable skill and care and in accordance with applicable laws.
8.2 Your obligations: You will:
(a) provide DHRP with all necessary access to such information and equipment as may be required by DHRP, in order to meet its obligations under this Agreement. If there are delays in Your provision of such assistance, DHRP may adjust any agreed timetable or delivery schedule as reasonably necessary;
(b) comply with the terms of this Agreement and all applicable laws and regulations with respect to Your activities under this Agreement and in relation to the Products;
(c) use the Products only in the manner contemplated in this Agreement and otherwise in accordance with DHRP’s reasonable instructions;
(d) not copy, decompile or reverse engineer any of the Products;
(e) carry out all Your responsibilities set out in this Agreement in a timely and efficient manner. obtain and shall maintain all necessary licences, consents, and permissions necessary for DHRP, its contractors and agents to perform their obligations under this Agreement, to the extent that these are not provided by DHRP;
(f) not commit any act or omission the likely result of which is that DHRP’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on DHRP’s interests;
(g) ensure that Your network and systems meet the standards for Compatible Hardware and Software;
(h) update and use the latest available version of the Products (as included in any general update release by DHRP);
(i) when using Network Services, comply with any acceptable use policy made available by DHRP from time to time;
(j) where relevant, be solely responsible for:
(i) procuring and maintaining all network connections and telecommunications links from Your systems to DHRP’s data centres; and
(ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the Internet, except in relation to the Equipment or as otherwise expressly provided for in this Agreement.
8.3 Unauthorised access: You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Products and, in the event of any such unauthorised access or use, shall promptly notify DHRP.
8.4 Notification: You shall notify DHRP immediately on becoming aware of any of the Products being used without authorisation and/or in breach of our Agreement.
8.5 Permitted Users: You shall procure that each Permitted User:
(a) is informed of their obligations under this Agreement; and
(b) complies with such obligations; and
will be responsible for any breach of this Agreement by a Permitted User.
9. FEES AND CHARGES
9.1 Fees: You shall pay to DHRP the Fees as set out in the Proposal.
9.2 Invoices: DHRP shall issue you with an invoice in respect of each payment due and each payment shall be due within 7 days of the invoice.
9.3 GST excluded: All Fees are exclusive of GST, and all other taxes, duties and surcharges payable in respect of the Products.
9.4 Review: DHRP may review the Fees at any time in its sole discretion. Any increase in Fees shall take effect 30 days from the date DHRP gives written notice to You of such increase.
9.5 Non-payment: If DHRP has not received payment of the Fees within 30 days of the due date specified in an invoice, and without prejudice to DHRP’s other rights and remedies:
(a) DHRP may disable Your password, account and access to all or part of the Cloud Products and DHRP shall be under no obligation to reinstate your access to the Cloud Products while the invoice(s) concerned remain unpaid; and
(b) DHRP may charge You interest in respect of the late payment of any sum due under this Agreement at the rate of 5% per annum above the prime lending rate from time to time of Westpac Banking Corporation from the due date thereof until payment and also to recover all costs incurred in relation to efforts to collect amounts due under this Agreement which are not paid by due date.
10. INTELLECTUAL PROPERTY
10.1 No rights transferred: All Intellectual Property rights in the Products are the exclusive property of DHRP or its licensors. The Agreement does not transfer to You any right, title or interest in respect of the Products other than the rights of usage expressly contemplated herein.
10.2 Ownership: DHRP or its licensors retain ownership of the Products and Derivative Products, both during and after the Subscription Term. For the purposes of this clause 10.2, “ownership” includes any direct and/or indirect interests of DHRP in and to the Products and/or any right (whether acquired under licence or otherwise) including Intellectual Property rights, to deal with the Products under this Agreement. You agree to execute (upon request by DHRP and in favour of DHRP and/or its nominee) any instruments, applications for letters patent, document and/or any other similar protection as DHRP may require to give effect to the provisions of this clause.
10.3 Developments: You must disclose all such generation, creation, development, and/or enhancement of Products to DHRP as soon as practicable, whether or not You have obtained DHRP’s prior consent in accordance with clause 13.3.
10.4 No contest: You shall not, and shall procure that Permitted Users do not, at any time during or after the term of this Agreement, directly or indirectly challenge or contest the ownership of the Products (including all the Intellectual Property rights and acquired ownership interests under clause 10.2) of DHRP.
10.5 Customer Data: Notwithstanding the foregoing, You shall retain the ownership of all Customer Data, whether or not used in connection with the Products, and DHRP and its Representatives shall keep confidential all such data.
11. DATA SECURITY AND PRIVACY
11.1 Applicable laws: You and DHRP acknowledge that compliance with applicable Privacy Laws is a priority. The parties shall comply with the terms of this clause 11 and ensure that all Representatives and Permitted Users are aware of and comply with the confidentiality and security obligations set out in this Agreement.
11.2 Personal information: This clause 11 applies to information (including health information) related to identifiable individuals that is stored and accessed by the Products, including Customer Data (Personal Information).
11.3 Customer Data: You will own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
11.4 Uses of Personal Information: DHRP and its Representatives, Related Parties and/or third parties engaged by DHRP may need to use or hold Personal Information for the purpose of providing services under this Agreement, support services and monitoring resolution of fault issues, and monitoring load on and usage of the Products. DHRP may embed query tools in the Products and/or Your database, and/or require You and Your Permitted Users to provide DHRP with access to Personal Information, for these purposes. DHRP may also require Personal Information to be removed from Products for the purposes of integrating with third parties. You acknowledge and consent to the removal of Personal Information under these circumstances.
11.5 Customer obligations: You must ensure that You, and any other person who provides DHRP with any Personal Information under or in connection with this Agreement:
(a) protect the Products from any unauthorised access, use and/or damage, including by use of internal procedures and technological security measures; and
(b) secure all data used in connection with the Products, including but not limited to ensuring data backup integrity and updating anti-virus software.
(c) have appropriate permission from the person(s) to whom that Personal Information relates in order for that Personal Information to be lawfully provided to DHRP, its Representatives, its Related Parties and its other third party suppliers (including by DHRP, its Representatives and its Related Parties); and used and disclosed by DHRP, its Representatives, its Related Parties and its other third party suppliers for the purposes of performing its obligations under this Agreement and for any other use or purpose described in this clause 11; and
(d) comply with all applicable law in relation to personal information and health records (including the Privacy Laws), including when providing Personal Information to DHRP.
11.6 No storage by DHRP: DHRP shall not be responsible for any information belonging to You or to any of Your Permitted Users, whether or not used in connection with the Products. You acknowledge that DHRP does not hold or store Personal Information, and that accordingly (subject to clauses 11.4 and 11.8) You alone are liable and responsible under applicable Privacy Laws for the correct storage, use and disclosure of Personal Information.
11.7 No liability for loss or damage: DHRP’s liability for any loss or damage to Personal Information which is caused by the Products alone is limited in accordance with clause 16 of these Terms and Conditions. DHRP is not liable for any loss or damage to or unauthorised use or disclosure of Personal Information caused by You, Your Permitted Users, or third parties, including where caused by accidental or unauthorised access to or disclosure of Personal Information, or where caused by Database Software or hardware. Unauthorised access could involve someone known to a Permitted User guessing their password or a stranger/hacker circumventing our security measures. Access details should never be given to any unauthorised person.
11.8 Archiving: DHRP shall follow certain archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, You may request that DHRP restore the lost or damaged Customer Data from the latest backup of such Customer. DHRP shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by DHRP to perform services related to Customer Data maintenance and backup).
12.1 Confidentiality: Each party undertakes to the other to keep confidential any information (written or oral) concerning the business and affairs of the other which was obtained during the negotiation of this Agreement and the Subscription Term.
12.2 Exclusions: The confidentiality obligations set out in clause 12.1 shall not apply to the extent that:
(a) the consent of the other party has been obtained in relation to the disclosure of any such confidential information;
(b) such confidential information has become public knowledge other than as a result of unauthorised disclosure by either party to this Agreement (or its Related Parties or Representatives), or where such information is already in the public domain;
(c) such confidential information is required to be disclosed to the auditors of either party or to any governmental agency or otherwise required by law; and/or
(d) the disclosure of such confidential information is reasonably required by a party to fulfil any conditions or obligations arising under this Agreement.
13. MODIFICATIONS AND COPIES
13.1 Request for modification: At Your request DHRP may (in its sole discretion) modify or vary a Product to improve its functions and/or capabilities.
13.2 Fees apply: DHRP may charge You a separate fee (at a rate agreed between the parties) if any such modifications or variations are, in DHRP’s reasonable opinion, of such complexity and scope so as to justify a separate fee.
13.3 Derivative Products: You shall not, and shall procure that Your Related Parties do not, either directly or indirectly, for Yourself or on behalf of or in conjunction with any other person create a Derivative Product, modify, revise, vary and/or alter the whole or any part of the Products, and/or combine, merge or incorporate the whole or any part of the Products in any other program, software and/or system, without DHRP’s prior written consent. Whether DHRP gives such consent is at its sole discretion and may be conditional upon You paying an additional fee.
13.4 Indemnity: You indemnify DHRP against all loss, cost, expense, claim and/or liability incurred arising (directly or indirectly) out of:
(a) any breach of clause 13.3; or
(b) any of Your modifications, revisions, variations and/or alterations of or to the Products, and/or combination, merger or incorporation of the Products into any other program, software and/or system, infringing the intellectual property rights of any third party (irrespective of whether You obtained DHRP’s prior consent under clause 13.3).
13.5 Copies: Except for the purposes of backup and security, You must not, and must ensure that the Permitted Users do not, copy or reproduce, in whole or in part, the Products by any means or in any form. A backup copy of a Product may only be used in lieu of the original copy of the Product. The terms of this Agreement shall apply to all copies of the Products.
13.6 Permitted Users: The total number of copies of the Products on all Your server(s) and/or computer workstation(s) must not exceed the maximum number of Permitted Users. Without limiting the generality of this clause and clause 13.5, You agree and acknowledge that where such total number exceeds such maximum number of the Permitted Users, and/or You breach clause 13.5, You shall be deemed to have illegally copied the Products.
13.7 Restrictions: You will not, and will ensure the Permitted Users do not:
(a) adapt, decompile, disassemble and/or reverse engineer the Products or any part of the Products;
(b) access, store, download, upload, distribute or transmit any Viruses or other material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, and DHRP reserves the right, without liability to You, to disable Your access to any material that breaches the provisions of this clause.
(c) except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create a product derived from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products in any form or media or by any means;
(d) attempt to obtain, or assist third parties in obtaining, access to the Products; or
(e) licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Permitted Users.
14. DATABASE SOFTWARE
14.1 Integration: As part of providing access to the Products, DHRP may provide or require access to, or integrate with, the Database Software.
14.2 Licence: Where Database Software is necessary to operate or access a Product, DHRP will:
(a) grant to You by way of sub-licence; or
(b) use reasonable commercial endeavours to assist You in obtaining from the owner of the Database Software,
a licence to use the Database Software solely for Your internal business purposes.
14.3 No rights: You acknowledge that you do not acquire any Intellectual Property in the Database Software other than the right to use such software subject to the terms of Database Software licence.
14.5 Disclosure: In the process of providing access to Database Software and complying with its obligations to third parties, DHRP may disclose Your name, address and other material information to that third party.
14.6 System degradation: DHRP will have no liability for any decrease in functionality of Your systems as a result of Product integration with third party systems or Database Software.
15. WARRANTIES AND LIMITATIONS
15.1 DHRP warranties: Subject to clauses 15.3 and 15.4, DHRP warrants that:
(a) the Products (including updates and/or any modifications or variations provided by DHRP) will, during the Subscription Term, perform substantially in accordance with DHRP’s specifications; and
(b) it is entitled to grant to You the usage rights granted under this Agreement.
15.2 DHRP indemnity: Subject to clauses 15.3 and 15.4, DHRP shall indemnify You against any claim made against You by any third party alleging that the Products (excluding any embedded or integrated Database Software) infringes the intellectual property rights of that third party. This indemnity is the sole remedy available to You for a breach of clause 15.1(b).
15.3 Exclusion of liability: DHRP shall not be liable to You if Your claim has arisen, directly or indirectly, out of:
(a) the use of the Products in conjunction with any equipment, hardware and/or software not supplied or previously approved by DHRP;
(b) if You fail to maintain the minimum specification for Compatible Hardware and Software advised to You from time to time;
(c) if You use the Products in a manner or for a purpose not reasonably contemplated or authorised by DHRP; and/or
(d) a Product that You have modified or varied, whether or not in accordance with clause 13.3.
15.4 Third party claims: DHRP shall not be liable to You under clause 15.2 in relation to any claim made against You by any third party alleging that the Products infringes the copyright of the third party, and You shall indemnify DHRP against all loss, cost, expense, claim and/or liability arising out of any such claim by any third party, if any of the following applies:
(a) the third party’s claim has arisen, directly or indirectly, out of Your non-compliance with any aspect of this Agreement;
(b) You do not permit DHRP to modify, alter or substitute the infringing part of the Products (at the cost of DHRP) to render the Products non-infringing;
(c) You do not authorise DHRP to procure for You, from the third party alleging the infringement of copyright, the licence and/or any other right for You to continue to use the Products in the manner contemplated under this Agreement notwithstanding any such alleged infringement;
(d) You do not notify DHRP of the other party’s claim of infringement of copyright within 7 days after becoming aware of the claim;
(e) DHRP’s ability to defend the claim has been prejudiced by Your non-compliance with any of its obligations under this Agreement;
(f) You do not give DHRP reasonable assistance in defending the claim; and/or
(g) You do not permit DHRP to have full control of the defence of the claim and all related settlement negotiations.
15.5 All other warranties excluded: Subject to the foregoing, to the fullest extent permitted by law, all conditions, warranties, guarantees, terms and undertakings, expressed or implied, statutory or otherwise in respect of the Products are excluded, except any guarantee or right conferred under any legislation (including the Australian Consumer Law), the exclusion of which would contravene legislation or cause part of or all of this clause to be void. Without prejudice to this DHRP does not warrant:
(a) that the use of the Products (in accordance with this Agreement or otherwise) will meet Your data processing, reporting or analytical requirements, or;
(b) that the use or operation of the Products in accordance with this Agreement will be uninterrupted or error free.
16. LIMITATION OF LIABILITY AND INDEMNITY
16.1 Limitation: neither party’s total liability to the other under this Agreement shall exceed the amount of the Fees paid to DHRP in the six months prior to the event giving rise to such liability, in respect of any occurrence or series of occurrences.
16.2 Indirect and consequential loss: Subject to clause 3.2 (where applicable), neither party shall be liable to the other party for any indirect, consequential or incidental damages or losses which may be incurred in connection with the Products or Support Services.
16.3 Exclusion: Despite clause 16.1, nothing in this Agreement shall exclude or limit Your liability in relation to a breach of clause 10.4 or Your indemnity obligations under clause 13.4(b).
16.4 Customer indemnity: You indemnify DHRP, its Representatives and Related Parties (each an Indemnified Person) from and against any liability, damage, loss, cost or expense suffered or incurred as a direct result of any act of or omission by You, Your Representatives or Permitted Users in breach of this Agreement or any other negligence or recklessness of You or Your Representatives.
17.1 Termination by DHRP: DHRP may terminate our Agreement immediately, in its sole discretion, if:
(a) You fail to pay to DHRP within 21 days after the due date for payment, any Fee or other amount payable under this Agreement; or
(b) You are in breach of any of Your material obligations under this Agreement and such breach has not been remedied within 21 days of the date DHRP notifies You of such breach, requiring that the breach be remedied (or such longer period as DHRP may stipulate); or
(c) DHRP reasonably believes that You or any of Your Representatives have committed a fraudulent act or have been guilty of misrepresentation in their dealings with DHRP; or
(d) an event of Force Majeure which precludes either party from complying with its obligations under this Agreement occurs and continues for more than 21 days; or
(e) You become, threaten or resolve to become, or are in jeopardy of becoming, subject to any form of insolvency administration.
17.2 Termination by You: You may terminate our Agreement immediately, in Your sole discretion if;
(a) DHRP is in material breach of any of its material obligations under this Agreement and such breach has not been remedied within 21 days of the date You notify DHRP of such breach, requiring that the breach be remedied (or such longer period as You may stipulate); or
(b) an event of Force Majeure which precludes DHRP from complying with its obligations under this Agreement occurs and continues for more than 21 days;
(c) You provide us with written notice that You do not consent to an amendment to our Agreement notified pursuant to clause 9.4 or 20, provided this notice is received in advance of the amendment coming into force; or
(d) DHRP becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration.
17.3 Termination on notice: Either party may terminate this Agreement by giving the other party not less than six months notice that it does not wish to renew a Product licence for an available Renewal Period, at all times in subject to clause 4.2.
17.4 Refund: Upon termination of this Agreement pursuant to clause 17.2, DHRP shall refund such amount of the Fees paid in advance by You to DHRP which relate to the period after the termination of our Agreement.
17.5 Return of Products: You shall, within 14 days of the termination of our Agreement, at DHRP’s sole option:
(a) return to DHRP all the original and copies of the Products and any material and/or documentation in relation to the Products provided by DHRP and/or its Representatives to You (including but without limitation all software or copies of software-generated and/or developed from, and/or incorporating part of, the Products), and permanently delete any electronically and/or digitally stored copy of all such software, material and/or documentation from any media in or on which they are stored, and shall certify in writing to DHRP that they have been so deleted; or
(b) destroy and/or permanently delete all such software, material and/or documentation from any media in or on which they are stored, and shall certify in writing to DHRP that they have been so destroyed and/or deleted.
17.6 Rights not affected: Any termination of the Agreement shall not affect any accrued rights or liabilities of either party to our Agreement, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
17.7 Survival: Clauses 1, 2, 8.4, 8.5, 9.1, 9.5(b), 10, 11, 12, 13.3, 13.4, 13.5, 13.7, 14.3, 14.6, 15, 16, 17.3, 17.5, 17.6, 17.7, 17.8, 18, 21, 23, 24, 25, 26 and 27 will survive the expiry or termination of this Agreement.
17.8 Transfer: On termination of our Agreement for any reason, DHRP may in its sole discretion:
(a) provide such assistance as You reasonably request to transfer You to another service provider, provided that You pay DHRP’s reasonable expenses for such assistance; and/or
(b) destroy or otherwise dispose of any of the Customer Data in its possession unless You send DHRP a written request for:
(i) delivery of the then most recent backup of the Customer Data, no later than ten days after the effective date of the termination of this Agreement. DHRP shall use reasonable commercial endeavours to deliver the backup to You within 30 days of receiving such request, You shall pay all reasonable expenses incurred by DHRP in returning or disposing of Customer Data; or
(ii) read-only access to the Products for a 12-month period following termination, in which case DHRP will provide you with read-only access at the then current rate for read-only access published by DHRP at that time;
provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).
18. DISPUTE RESOLUTION
18.1 Process: If either party has any dispute with the other in connection with our Agreement, then:
(a) the parties will use best endeavours to settle the dispute by agreement between them and act in good faith and co-operate with each other to resolve the dispute; and
(b) if the dispute is not settled by agreement between the parties within 30 days, then, unless both parties agree otherwise:
(i) full written particulars of the dispute must be promptly given to the other; and
(ii) mediation will be conducted by a single mediator agreed between the parties, or, if the parties cannot agree on a mediator, a mediator will be nominated by LEADR or if LEADR no longer exists or is unable to nominate a mediator, the President for the time being of the Australian Law Society. In the event of any such submission to mediation:
(aa) the mediator will not act as an expert or arbitrator;
(bb) the mediator will determine the procedure and timetable for the mediation; and
(cc) the cost of the mediation, including any cost associated with a referral to the Australian Law Society for the appointment of a mediator, will be shared equally between the parties, unless otherwise agreed; and
(iii) if, at the conclusion of the mediation procedures as set out in clause 18.1(b), the dispute is not resolved to the satisfaction of either party, then that party may, by written notice to the other, terminate the Agreement by providing one month’s notice in writing to the other party.
18.2 No litigation: Neither party will initiate any litigation during the dispute resolution process outlined in clause 18.1 above, unless urgent proceedings are necessary to preserve a party’s rights.
18.3 Obligations remain: Both parties will continue to comply with all their respective obligations in the Agreement until the dispute is resolved, but payments may be withheld to the extent that they are disputed.
19. FORCE MAJEURE
19.1 Obligations suspended: If either party is wholly or partially precluded from complying with its obligations under this Agreement by an event of Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the event of Force Majeure.
19.2 Notification: As soon as practicable after an event of Force Majeure arises, the affected party must notify the other of the extent to which it is unable to perform its obligations under this Agreement.
19.3 Obligations to recommence: The affected party must recommence the performance of its obligations under this Agreement immediately after the cessation of the event of Force Majeure and must immediately notify the other party of this.
20.1 Amendment by DHRP: DHRP may amend any terms of this Agreement at any time, in its sole discretion.
20.2 Notification: An amendment will be notified to You either:
(a) at the time You permit or purchase Product updates; or
(b) by email notification at any time.
20.3 Application: Subject to clause 20.4,an amendment will apply and come into effect on the earlier of:
(a) 30 days after it is notified to You; and
(b) when you click ‘I Accept’ or the equivalent indication of acceptance on any notification.
20.4 Consent: If You do not consent to an amendment notified by DHRP, You must inform DHRP of this in writing no later than 30 days after You receive notification of the amendment. You are deemed to have consented to any amendment requested by DHRP by:
(a) clicking ‘I Accept’ or the equivalent indication of acceptance on any notification; or
(b) continuing to use the Product 30 days after an amendment has been notified to You, without notifying DHRP of an objection to the amendment.
20.5 Termination right: You have the right to terminate this Agreement in accordance with clause 17.2(c) if:
(a) DHRP notifies You of a material amendment to this Agreement; and
(b) You notify DHRP within 30 days (in accordance with clause 20.4) that You do not consent to the amendment.
20.6 Amendment by You: You may request an amendment to this Agreement (including to add new Permitted Users and/or new Products) on written request to DHRP. DHRP has the right to accept or refuse such request in its sole discretion and to amend the Fees payable in relation to such amendment accordingly.
21.1 No partnership or agency: Nothing in this Agreement shall create a partnership between the parties, or create a party as an agent of the other party, unless this Agreement expressly provides.
21.2 Liability for Permitted Users: Where any of Your Permitted Users and/or Related Parties does anything which, if done by You, would constitute a breach of Your obligations under this Agreement, You will be deemed to be in breach of this Agreement.
21.3 DHRP’s obligations: All of DHRP’s obligations under this Agreement are owed to You by DHRP (and any of its assignees), and not by any other party.
22.1 Assignment by You: You may not assign, transfer or sub-licence, or attempt to assign, transfer or sub-licence, any of Your rights and/or obligations under this Agreement, without the prior written consent of DHRP. DHRP will not unreasonably withhold such consent but may charge You a reasonable processing fee for the grant of such consent.
22.2 Assignment by DHRP: DHRP may transfer or assign any of its rights and/or obligations under this Agreement to any third party, without any notice to You.
23.1 Form: A notice required or authorised to be given or served on a party under this Agreement must be in writing and may be given or served by email, post or hand to that party at its email address or physical address.
23.2 Deemed receipt: A notice will be deemed to be received by the addressee:
(a) if sent by email, at the time and date at which the sender’s email system records that the email was successfully delivered to the recipient, provided that:
(i) if such transmission is made or completed at a time outside normal business hours, it will be deemed to have been received at the opening of business on the next Business Day; and
(ii) an error or non-delivery email is not received by the sender (or by the sender’s email server) in respect of that sent email;
(b) in the case of personal delivery, when delivered; or
(c) in the case of a postal delivery, on the third Business Day after posting.
24.1 No waiver: No delay or compromise by a party in respect of any breach of the other party’s obligations under this Agreement operates as a waiver or prevents that party from subsequently enforcing that obligation.
25. ENTIRE AGREEMENT
25.1 These Terms and Conditions and the Proposal, together with any variations of these agreed in accordance with clause 20, constitutes the entire understanding and agreement of the parties relating to the transactions contemplated by these documents, including any previous licence for the Products or Support Services.
26.1 Unlawful provisions: Any unlawful or voidable provision in this Agreement shall be read down as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without effecting the validity, legality or enforceability of the remaining provisions, provided the reading down or severing does not materially affect the purpose of or frustrate this Agreement.
27. GOVERNING LAW
Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of Australia.