Event Software Terms

IVVY SOFTWARE AGREEMENT (PROFESSIONAL CONFERENCE ORGANISERS) ONLINE TERMS AND CONDITIONS (13/08/2013)

This Agreement is between IVVY PTY LTD ACN 138 782 822 of 54 Siganto Drive, Helensvale 4212 QLD (“Ivvy”) and you (the “Client”)

BACKGROUND

  1. Ivvy has an entitlement to exploit the Software.
  2. The Software is designed to assist in the more efficient management of events and functions.
  3. The Client wishes to obtain the Software from Ivvy to use for event and function management.
  4. Ivvy agrees to give the Client access to the Software on the below terms and conditions.

THE PARTIES AGREE TO THE FOLLOWING TERMS AND CONDITIONS

1. DEFINITIONS AND INTERPRETATION

  1. Definitions
    In this Agreement, the following terms have these meanings, unless the context requires otherwise.
    1. Agreement means the agreement created between you and iVvy by this document, and the Client Agreement;
    2. Business Day means any day other than Saturday, Sunday and Australian public holidays;
    3. Client Agreement means the document that specifies the inclusions of the Software.
    4. Commencement Date means the date you accept these terms and conditions on your Client Agreement;
    5. Confidential Information means any information or material (including information or material provided to a party by third parties), whether in oral, visual or written form or recorded in any other medium, disclosed by a party to, or observed from a party by, the other party, or which is otherwise acquired by one party directly or indirectly from the other party or generated by a party in accordance with this Agreement, which is designated, or treated, by a party as confidential, and includes the Software Source Code, Object Code, file layouts and interfaces, and Documentation, and all confidential discoveries, ideas, trade secrets, know how, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, file layouts, documentation, diagrams, flow charts, processes and procedures, and information pertaining to the business, plans, forecasts, finances and strategies of a party and its clients and suppliers and each of their clients and suppliers;
    6. Documentation means the documentation for and in relation to the Software to be provided to the Client by Ivvy under this Agreement;
    7. Equipment means equipment which Ivvy recommends from time to time and which is to be provided by the Client;
    8. Event means a function, meeting, gathering, convention, concert or other similar gathering;
    9. Fault means a failure in the normal operation of the Software;
    10. Fault Response Time means the period of time between a failure in the normal operation of the Software being reported to Ivvy by the Client and a response from Ivvy acknowledging the report and are as specified in Schedule A.
    11. Fees means the fees described in the accompanying Customer Agreement
    12. Force Majeure Event means, for a party, any occurrence or omission as a direct result of which the party is prevented from or delayed in performing any of its obligations under this Agreement (other than the payment of money), and that is beyond the reasonable control of that party, including forces of nature, industrial action, and action or inaction by a government agency;
    13. GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
    14. Installation means the provision to the Client of access to the Software;
    15. Intellectual Property Rights means all industrial and intellectual property rights world-wide whether protectable by statute, at common law or in equity, and whether or not registered or capable of being registered, including but not limited to:
      1. the entire copyright throughout the world and any similar rights which may subsist or may hereafter subsist in all works, discoveries, designs, drawings, specifications, records, manuals, models, memoranda, technical data, and in particular the Software, its Source Code, Object Code, file layouts and interfaces and the Documentation, and in any other subject matter;
      2. source code and object code, software or hardware products (whether fully developed or in research and development stage);
      3. rights in relation to inventions (including all patents and patent applications);
      4. rights in relation to trade secrets, business concepts and know-how;
      5. rights in relation to designs (whether or not registrable);
      6. rights in relation to registered and unregistered trade marks;
      7. rights in relation to circuit layout designs and circuit layouts;
    16. Ivvy Support Desk means the contact point for Faults, which the Client may contact by dialling the number telephone number specified here 1300 004 889
    17. Licence means the licence to use the Software referred to in clause 4(1);
    18. Licensed User means each person including employees, agents, brokers and non-employees of the Client, who has access to and is licensed to use the Software in accordance with the terms of this Agreement and the relevant Plan;
    19. Merchant Fee means all costs of processing merchant transactions including bank fees and other third party costs;
    20. Purpose means that set out in clause 3;
    21. Service Levels means those set out in Schedule A;
    22. Software means the Ivvy software which is to be supplied by Ivvy to the Client;
    23. Taxes means all taxes including, without limitation, excise duties, sales tax, GST, stamp duties, customs duties, payroll taxes, government duties, charges and fees, other than income tax;
    24. Term means the period beginning on the Commencement Date and ending on the termination of this Agreement under clause 15, or as set out in the Customer Agreement;
    25. Third Party means any person or entity, other than Ivvy, and includes (but is not limited to) any or all of the Client’s related entities, associates, suppliers, contractors, sub-contractors, agents and consultants;
    26. Third Party Software means any software which is not created or manufactured by Ivvy;
       
  2. Interpretation
    1. Headings are for convenience only and do not affect the interpretation or construction of this Agreement.
    2. Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or any party of it.
    3. The following rules apply to this Agreement unless the context requires otherwise:
      1. words in the singular include the plural and vice versa;
      2. a gender includes all genders;
      3. a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible form but excludes any communication using email;(iv) a reference to “dollar” or “$” means a reference to Australian dollars;
      4. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
      5. a reference to person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
      6. a reference to a year is a reference to each successive period of twelve months, commencing on the Commencement Date;
      7. a reference to a month is a reference to each successive month, commencing on the Commencement Date; and
      8. the meaning of general words is not limited by specific examples introduced by ‘including’ or similar expressions.

2. TERM

  1. Commencement and Duration
    This Agreement will commence on the Commencement Date, and unless terminated in accordance with this Agreement, will continue for the Term.

3. PURPOSE

  1. The Licence to use the Software granted by clause 4(1) is strictly for use by the Client in the management and promotion of its event and function management business and may not be used for any other purpose whatsoever (“the Purpose”).
  2. The Client is not entitled to grant any sub-licences.

4. GRANT OF LICENCE

  1. Ivvy grants to the Client a non-exclusive Licence for the Term to use the Software and Documentation for the Purpose, always subject to payment by the Client of all monies to be paid under this Agreement.
  2. The Licence to use the Software is non-transferable.

5. THIRD PARTY SOFTWARE

  1. The Client acknowledges and agrees that Third Party Software may be required and those fees are not specified in this Agreement. 
  2. Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Third Party Software are excluded. Without limiting the generality of the preceding sentence, Ivvy shall not be under any liability to the Client in respect of any loss or damage (including consequential loss or damage) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of any error or defect in or failure of, any Third Party Software.

6. LICENSED USE

  1. Licensed Users
    The Licence applies only to and only permits use by the Licensed Users.
     
  2. Prohibited Use
    Unless otherwise permitted by this Agreement, the Client must not:
    1. reverse-engineer or attempt to reverse-engineer the Software or any part of the Software;
    2. attach, operate or otherwise interface any software (other than the Software) with the Software and/or the Equipment without the prior written consent of Ivvy, which consent may be given or withheld by Ivvy (including the imposition of terms) in Ivvy’s sole discretion but such consent will not be unreasonably withheld provided Ivvy is satisfied that its Intellectual Property Rights are protected.

7. PROPRIETARY RIGHTS

  1. No Transfer of Rights
    The Client:
    1. acknowledges that the Licence does not involve the transfer to it of any proprietary rights in the Software; and
    2. will take all steps as may be reasonably expected by Ivvy to protect Ivvy Intellectual Property Rights in the Software.

8. INVESTIGATION OF FAULTS

  1. Ivvy will analyse the cause of the suspected Fault and determine if the suspected Fault is a Fault and if so, will issue the Client a Fault reference number.
  2. Ivvy will use its reasonable commercial endeavors to meet the Fault Response Times.
  3. Ivvy will not provide Fault rectification or restoration under this Agreement where the cause of the Fault is not as a result of the Software itself.
  4. If after analysing a reported Fault, Ivvy determines that the cause of the Fault is as a result of user error the Customer agrees to pay Ivvy the Hourly Rate for its investigation and/or rectification of the Fault.

9. INVOICING AND PAYMENT

  1. General
    The Client must pay Ivvy the Fees in advance and otherwise as required to be paid in accordance with the Customer Agreement and this clause 9.
     
  2. Fees payable are exclusive of Taxes
    All fees, costs and payments due under this Agreement are expressed exclusive of any Taxes or duty which may be payable on those amounts, and any Taxes or duty imposed or payable in relation to such amounts must also be paid in full by the Client.
     
  3. Annual Subscription Fee
    The annual subscription fee will be subject to increase, on each anniversary of the commencement date, in accordance with movements in the Consumer Price Index (All Groups) for all Capital Cities as published by the Australian Bureau of Statistics capped at a maximum annual increase of 4%.
     
  4. Invoicing and Payment
    1. Invoicing
      Ivvy will invoice the Client for the Fee in advance or otherwise as Ivvy’s service is utilised by the Client.
    2. Payment
      The Client must pay each of Ivvy’s invoices for the Licence Fee within 7 days of the date of the invoice.
    3. Direct Debit/Credit Card Authority
      1. The Client agrees to make all payments due under this Agreement by direct debit from the Client’s nominated bank account or via credit card preauthorisations.
      2. For the purpose of clause 9(3)(c)(i) the Client agrees to complete and sign all documentation necessary for the direct debit or credit card pre-authorisation.
      3. The Client hereby authorises Ivvy to debit all Fees, Merchant Fees and other monies due under this Agreement from the Client’s designated bank account or from its nominated credit card.
    4. Collecting Payments
      1. Where Ivvy has been set to collect payments on behalf of the Client, the Client authorises Ivvy to remit to the Client the payment less the Fee, the Merchant Fee and any other monies outstanding or due under this Agreement.
      2. If an Event is cancelled the Fee and Merchant Fee remains payable and the Client will not be entitled to a refund of the Fee and Merchant Fee for that particular Event.
         
      3. There are no refunds on the Fees for deleted or cancelled attendees.
    5. Non-Payment and Interest
      1. If any Fee or other money payable under this Agreement by the Client remain unpaid for more than 7 days past the due date, Ivvy may suspend performance of all or any of its obligations under this Agreement.
      2. In addition, Ivvy may charge the Client interest on the unpaid and outstanding amounts at the rate set by the Westpac Banking Corporation for overdraft facilities for amounts in excess of $100,000 calculated from thedate payment is due until the date payment is made.

    10. INTELLECTUAL PROPERTY

    1. Intellectual Property Rights 
      The Client acknowledges that all Intellectual Property Rights in Ivvy’s Confidential Information, the Software and the Documentation, and in any enhancement, or modification of the Software or the Documentation, and in any other material proprietary to Ivvy, vest exclusively in Ivvy, and that the Client will not infringe Ivvy’s Intellectual Property Rights, nor seek to exploit or use any such material for its own purposes other than as set out in this Agreement.
       
    2. Acknowledgment
      T      he Client acknowledges that:
      1. all Intellectual Property Rights in Ivvy’s Confidential Information, the Software, the Documentation, in any other material proprietary to Ivvy, and in any enhancement or modification of the Software or the Documentation utilised by or provided to the Client in connection with this Agreement are and remain the property of Ivvy, and the Client acquires no right or interest (except for the Licence in such property); and
      2. following the expiry of the Term or earlier termination of this Agreement:
        1. the Client has no right or entitlement to use the Intellectual Property Rights of Ivvy referred to in clause 10(2)(i);
        2. Ivvy is not obliged to provide any maintenance services to the Client with respect to the Software, the Documentation, any other material proprietary to Ivvy, and any enhancement, modification or Customisation of the Software or the Documentation utilised by or provided to the Client in connection with this Agreement; and
        3. the Client’s access to the Software will cease immediately.
           
    3. Assignment by Client
      Where the Client is given access to the Software or Documentation or any other thing in which Ivvy has Intellectual Property Rights, and following provision to such access the Client develops or creates any inventions or processes (whether capable of registration or not) (collectively Works), as legal and beneficial owner the Client hereby:
      1. assigns to Ivvy all right, title and interest in and all rights subsisting in the Works anywhere in the world, including all Intellectual Property Rights in the Works and all proprietary rights subsisting in any material form of the Works;
      2. assigns to Ivvy all copyright subsisting in the Works which is created in the future;
      3. agrees to assign to Ivvy the right, title and interest in and to all rights subsisting in future works, anywhere in the world, including the Intellectual Property Rights not assigned under clause 10(3)(i) or clause 10(3)(ii) and the proprietary rights subsisting in any material form of the Works not assigned under clause 10(3)(ii);
      4. assigns to Ivvy the right to claim (and retain) any damages and other remedies (including but not limited to an account of profits) for past infringement of and wrongful interference to the Works which arose before this assignment; and
      5. warrants that the Client will procure consents with respect to all moral rights subsisting in the Works, including consent to do all acts or omissions in relation to the Works, whether occurring in the past, present or future, from all employees and contractors involved in the creation of the Works that, but for this consent, would infringe any moral rights or similar rights the employee or contractors may have anywhere in the world.

    11. WARRANTIES AND INDEMNITY

    1. Client Warranties
      The Client warrants to Ivvy that, for the duration of this Agreement:
      1. it will operate the Software only in accordance with Ivvy operating instructions and the Documentation;
      2. other than as provided in this Agreement, it will not authorise or allow any person other than Ivvy to access the Software;
      3. it will promptly notify Ivvy of any malfunctions or discrepancies in, or problems with, the Software or Documentation;
      4. it acknowledges that clause 10 is an essential term of this Agreement and the Client will not infringe Ivvy’s Intellectual Property Rights. The Client will immediately notify Ivvy of any infringement or potential infringement or in the event it knows or receives notice which indicates that the Intellectual Property Rights in the Software or Ivvy’s Confidential Information have been or may be infringed. The Client will use its best endeavours to ensure that none of its employees, suppliers, sub-licensees or other Third Parties infringe Ivvy’s Intellectual Property Rights, and in the case of an infringement of such Rights (without limitation to its other obligations as a consequence) the Client will assist Ivvy in any reasonable way to prosecute the infringer;
      5. it will maintain up to date back up copies of its data contained on the Software, in order to avoid loss or damage arising from any corruption of the Software. The Client acknowledges that Ivvy will not be responsible in the event that any data is corrupted or erased for any reason;
      6. it will ensure that any Third Party to whom it has provided any of Ivvy’s Confidential Information or Intellectual Property Rights of Ivvy complies with the terms of this Agreement as if it was the Client, and the Client will be responsible to Ivvy for any act or neglect by such Third Party that would constitute a breach of this Agreement; and
      7. it will not use any Intellectual Property Rights of Ivvy, or describe any of the products or services of Ivvy, whether in printed material or on the internet, without the prior written consent of Ivvy.
         
    2. Ivvy’s Warranties
      Subject to clause 12(1), Ivvy warrants to the Client that, for the duration of this Agreement:
      1. it has the right and authority to enter into this Agreement and will provide the Software to the Client in accordance with this Agreement or any properly executed variation to the Agreement;
      2. it will provide the Documentation to the Client to enable the Client to make proper use of the Software;
      3. each item of Software will operate in accordance with the Documentation;
      4. it will exercise all due care and skill in the provision of any services due under this Agreement.
         
    3. Duration of warranties
      The warranties contained in clauses 11(1)(a), 11(1)(ii), 11(1)(iv) and and in clause 11(2)(iii) survive termination of this Agreement.
       
    4. Indemnity by Ivvy
      1. Ivvy must at all times indemnify and hold harmless the Client, its officers, employees and agents from and against all costs, expenses, losses and damages arising out of an infringement of a third party’s Intellectual Property Rights by Ivvy (IP Claim).
      2. If an IP Claim is made then the Client must immediately provide full details to Ivvy. Ivvy shall conduct the defence of any infringement proceedings and the Client shall, at Ivvy’s cost, provide all reasonable assistance to Ivvy in respect of the proceedings.
      3. In the event that any judgement holds that the Software (or any part of it) infringes a third party’s Intellectual Property Right, Ivvy will at its expense:
        1. use all reasonable endeavours to immediately secure all necessary consents to ensure the Client’s undisturbed continued use of the Software, or if this is not possible;
        2. make all reasonable effort to modify or replace the Software so that it does not infringe a third party’s Intellectual Property Rights, provided that the Software’s functionality and operation remains of a standard required by this Agreement; or
        3. use all reasonable endeavours to secure the use of replacement software suitable to the Client on terms no less favourable than this Agreement.

    12. LIABILITY

    1. No consequential loss etc
      I      n no event will either party or its principals, employees or agents be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits, loss of data, and opportunity costs)
       
    2. Statutory Warranties
      In the event that this Agreement is a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 or any similar State or Territory Act (Acts), nothing in this Agreement will be taken to exclude or restrict Ivvy’s obligations under, or any implied warranties imposed by, the Acts in relation to the Client where it would be unlawful to do so, in which event Ivvy’s sole liability for breach of any such obligation or implied warranty imposed by the Acts (including for any consequential loss) shall be limited to:
      1. in relation to goods:
        1. the replacement of the goods, or the supply of equivalent goods, or payment of the costs of replacing the goods or acquiring equivalent goods; or
        2. the repair of the goods or payment of the cost of having the goods repaired;
      2. in relation to services:
        1. the supplying of the services again; or
        2. the payment of the cost of having the services supplied againas in each case Ivvy may elect in its sole and absolute discretion.
      3. Subject to any express statement to the contrary in this Agreement, all other conditions and warranties which may otherwise be implied in this Agreement (by statute or otherwise) are excluded.
      4. The Client warrants that it has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of Ivvy which has not been stated expressly in this Agreement, or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity materials produced by Ivvy which has not been stated expressly in this Agreement.
      5. Where any loss or damage suffered by the Client is attributable to the fault, negligence or lack of care on the part of the Client or on the part of any person for whom the Client is responsible, Ivvy and its partners and staff have no liability (in tort, contract or otherwise) for such loss or damage to the extent that it is attributable to the relevant fault, negligence or lack of care.
      6. The Client acknowledges and agrees that Ivvy will not be liable to the Client for any damages, costs, expenses or loss (including, without limitation, loss of profits, loss of data and opportunity costs) incurred by the Client as a consequence of fraudulent behaviour by any person.
      7. The parties expressly agree that this clause 12 survives the termination of this Agreement.

    13. CLIENT CONFIDENTIAL INFORMATION

    1. Ivvy’s acknowledgments
      I      vvy acknowledges that:
      1. in performing its obligations under this Agreement, it may generate or acquire Confidential Information proprietary to the Client;
      2. the Client’s Confidential Information contains information which is valuable to the Client; and the improper use or disclosure of the Client’s Confidential Information may cause serious loss and damage to the Client, its respective customers and suppliers.
         
    2. Use of the Client’s Confidential Information
      Except as permitted by this Agreement, or otherwise with the prior written consent of the Client, Ivvy will:
      1. not disclose any of the Client’s Confidential Information to any person, and will hold the Client’s Confidential Information in strict confidence and keep it secret,
      2. not make any use of any of the Client’s Confidential Information except for the purposes of performing its obligations under this Agreement,
      3. not reproduce any of the Client’s Confidential Information except to the extent necessary to fulfil its obligations under this Agreement,
      4. on request at any time by the Client, immediately return to the Client or permanently delete or destroy, as the Client directs, all copies or records of the Client’s Confidential Information in iVvy’s possession or control, and provide written confirmation once this has occurred.
         
    3. Extent of obligations
      The provisions of clause 13(2) do not apply to:
      1. information which at the time of its first disclosure or observation pursuant to this Agreement was generally available to the public other than because of a breach of this clause 13 or of any obligation of confidence;
      2. information after it becomes generally available to the public other than because of a breach of this clause 13 or of any obligation of confidence;
      3. the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case Ivvy will notify the Client that it is required to disclose the Confidential Information prior to such disclosure).
         
    4. Period of obligations
      Ivvy’s obligations under this clause 13 survive termination of this Agreement.

    14. IVVY CONFIDENTIAL INFORMATION

    1. Obligations to keep information confidential
      The Client must:
      1. keep all Ivvy Confidential Information strictly confidential and not disclose it to any person or Third Party without Ivvy prior written consent. Should Ivvy consent to any disclosure of its Confidential Information the Client must, prior to any disclosure, obtain from the person to whom the Confidential Information will be disclosed, an executed Confidentiality Agreement in such form that Ivvy may provide to the Client;
      2. only disclose Ivvy Confidential Information to those of its officers, employees or contractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;
      3. put in place and maintain adequate security measures to protect Ivvy Confidential Information from unauthorised access or use;
      4. only use Ivvy Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement;
      5. on request at any time by Ivvy, immediately return to Ivvy or permanently delete or destroy, as Ivvy directs, all copies or records of Ivvy Confidential Information in the Client’s possession or control, and provide written confirmation once this has occurred;
      6. keep this Agreement and its terms confidential unless otherwise agreed by the parties.
         
    2. Exceptions
      The provisions of clause 14(1) do not apply to:
      1. information which at the time of its first disclosure or observation pursuant to this Agreement was generally available to the public other than because of a breach of this clause 14 or of any obligation of confidence;
      2. information after it becomes generally available to the public other than because of a breach of this clause 14 or of any obligation of confidence;
      3. the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case the Client will notify Ivvy that it is required to disclose the Confidential Information prior to such disclosure).
         
    3. Period of obligations
      The Client’s obligations under this clause 14 survive termination of this Agreement.

    15. TERMINATION

    1. Termination by either party
      Either party may terminate this Agreement with 30 days written notice if the other party:
      1. breaches a material term of this agreement that is not capable of remedy;
      2. breaches a material term of this Agreement that is capable of remedy, and does not remedy that breach within 30 days of the terminating party giving notice to the other party to rectify the breach;
      3. becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration and/or is unable to pay its debts as and when they fall due; or
      4. ceases or threatens to cease conducting its business in the normal manner.
         
    2. Suspension
      Ivvy may suspend the Client’s access to the Software without notice if any amount payable by the Client under this Agreement remains unpaid for 7 or more days.
       
    3. Other Rights not affected by Termination
      Termination under this clause 15 will be without prejudice to any other rights or remedies to which either party may be entitled at law.
       
    4. Software on Termination or Expiry
      1. On expiry or termination of this Agreement the Client’s access to the Software and the Documentation (including all copies of them) will immediately cease.
      2. This clause survives the expiry or termination of this Agreement.
         
    5. Surviving obligations
      Termination of this Agreement does not affect any provisions which are stated, or by their context required, to survive termination.

    16. FORCE MAJEURE

    1. Notice and suspension of obligations
      1. If a party is affected or is likely to be affected by a Force Majeure Event, that party must, as soon as practicable after becoming aware of the Force Majeure Event, immediately give the other party notice of that fact including:
        1. full particulars of the Force Majeure Event;
        2. an estimate of its likely duration;
        3. the obligations affected by the Force Majeure Event and the extent of the effect of the Force Majeure Event on those obligations; and
        4. the steps taken to rectify the Force Majeure Event.
      2. The obligations under this Agreement of the party giving the notice (except the obligation to pay money) are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
         
    2. Effort to overcome
      A party claiming a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event as quickly as possible. However, this does not require a party to settle any industrial dispute in any way it does not want to.
       
    3. Termination
      If a party’s performance of this Agreement continues to be affected by a Force Majeure Event for more than 60 days, the other party may terminate this Agreement by giving at least 5 Business Days’ notice to the other.

    17. DISPUTES

    1. Negotiation
      If there is a dispute between the parties in connection with this Agreement, then, within 10 Business Days of a party giving the other notice of the dispute under this clause 17, responsible officers of each of Ivvy and the Client must meet and use all reasonable endeavours acting in good faith to resolve the dispute.
       
    2. Escalation
      If the dispute is not resolved within 10 Business Days of the meeting referred to in clause 17(1), then the parties must first refer the dispute to the Managing Director or Chief Executive Officer of each party, who will attempt to resolve the dispute, and who may (but are not obliged to) agree to submit the dispute to an independent expert acceptable to both parties for determination. The cost of submission to that independent expert will be met equally by the parties.
       
    3. Decision to be binding
      If a dispute is submitted to an independent expert, the parties must comply with all determinations made under clause 17(2). Any person appointed to resolve the dispute under clause 17(2), will sit as an expert and not as an arbitrator and (except for cases of manifest error or fraud) determinations made under clause 17(2) are not subject to appeal to any court or tribunal. A party will not commence court proceedings in relation to a dispute until the procedures in clauses 17(1) and (2)  have been exhausted.

    18. GENERAL PROVISIONS

    1. GST
      If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.
       
    2. Assignment
      Ivvy may transfer any of its rights and liabilities under this Agreement.
       
    3. Notices
      1. Form and Service
        A notice, consent, approval or other communication under this document must be signed on behalf of the party giving it, addressed to the party to whom it is to be given and may be:
        1. delivered to the last known address of a party on a business day between 9.00am and 5.00pm (at the place of delivery);
        2. sent to the last known address of a party by pre-paid post;
        3. sent by facsimile transmission to the last known facsimile number of a party on a business day between 9.00am and 5.00pm (at the place where the transmission is received).
           
      2. Time of Service
        A notice is deemed to be given and received:
        1. if given in accordance with sub clause (3)1)(i) above, on the date of delivery;
        2. if given in accordance with sub clause (3)(1)(ii) above, one (1) clear business day after the day of posting to an address in Australia, or otherwise three (3) clear business days after the day of posting;
        3. if given in accordance with sub clause (3)(1)(iii) above, on the date of written confirmation of transmission to the recipient, but if later than 5.00pm on the day of receipt of the transmission then at 9.00am on the next business day, in the place of receipt.
           
      3. Further assurance
        Each party must execute any document and perform any action necessary to give full effect to this document, whether before or after performance of this document.
         
      4. Continuing performance
        1. The provisions of this document do not merge with any action performed or document executed by any party for the purposes of performance of this document.
        2. Any representation in this document survives the execution of any document for the purposes of, and continues after, performance of this document.
        3. Any indemnity agreed by any party under this document:
          1. constitutes a liability of that party separate and independent from any other liability of that party under this document or any other agreement; and
          2. survives and continues after performance of this document.
             
      5. Waivers
        Any failure by any party to exercise any right under this document does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
         
      6. Remedies
        The rights of a party under this document are cumulative and not exclusive of any rights provided by law.
         
      7. Severability
        Any provision of this document which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this document or the validity of that provision in any other jurisdiction.
         
      8. Governing Law and Jurisdiction
        1. This document is governed by and construed under the laws in the State of Queensland.
        2. Each party by execution of this document irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.
           
      9. Use of Trademark
        The Client will authorise Ivvy to use the trade marks on a non exclusive basis for the Term without any fee in advertising, for promotional documents including websites to indicate that the Client is a licensed user of the Software (but not to be used as a trade mark and subject to such reasonable conditions and stipulations which the client may require).  The Client agrees to provide any art work reasonably required for such purposes.

    SCHEDULE A – SERVICE LEVELS

    Fault Type Response time and type

    A CRITICAL FAULT is defined as one where a large element of the Software users are unable to complete an essential business function using the Software.
    Standard resolution targets are 75% of faults resolved within 4 working hours.
    Typical examples of a critical fault are: Total Software failure, a major Software system component is inoperative or multiple Software Customer groups are impacted.

    Method Of Reporting: Customer To Telephone iVvy

    		 Ivvy must acknowledge receipt of the Fault Notification within 1 hour of receipt

    A HIGH PRIORITY FAULT is one where large groups of Software users are impeded in the completion of an essential business function using the Software, but a work around exists.
    Standard resolution targets are 75% of faults resolved within 8 working hours.
    Typical examples of a high priority fault are: Partial loss of critical business function using the Software during normal business hours, Software system operating with severe limitations or business unit is unable to perform any function.

    Method Of Reporting: Customer To Telephone iVvy

    		 Ivvy must acknowledge receipt of the Fault Notification within 3 hours of receipt

    A MEDIUM PRIORITY FAULT is defined as one where a small number of individuals are impeded in the completion of an essential business function using the Software.
    Standard resolution targets are 75% of faults resolved within 2 working days.
    Typical examples of a medium priority fault are:  business unit able to function with reduced capacity or functionality, minimal impact system availability to the Customer.

    Method Of Reporting: Log Ticket

    		 Ivvy must acknowledge receipt of the Fault Notification within 6 hours or receipt

    A LOW PRIORITY FAULT is defined as one where an individual is impeded in the completion of a non-essential business activity using the Software or where a temporary work around exists for an essential business function using the Software.
    Standard resolution targets are 75% of faults resolved within 5 working days.
    Typical examples of a low priority fault are: Business unit can function normally, but some individuals are affected and requests for a move, addition or change to a Customer’s system.

    Method Of Reporting: Log Ticket

    		 Ivvy must acknowledge receipt of the Fault Notification within 24 hours of receipt