Terms & Conditions
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
ACL: the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Affiliate: includes, in relation to either party, each and any Subsidiary or Related Body Corporate of that party and each and any Subsidiary of a Related Body Corporate of that party.
Agreement: includes these Terms and the License Agreement and Limited Warranty.
Billing Period: monthly where the Customer purchased the Software on a monthly basis or annually where the Customer purchased the Software on an annual basis.
Commencement Date: the date on which the Customer purchases the Software.
Control: a business entity will be deemed to "control" another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity, or any other comparable equity or ownership interest with respect to a business entity other than a corporation OR as defined in section 50AA of the Corporations Act.
Corporations Act: the Corporations Act 2001 (Cth).
Customer: means any person who has purchased a subscription of the Software.
Element: any additional features offered to the Customer at an additional cost.
Extended Term: has the meaning given to that term in clause 11.
Fee: the fee payable by the Customer to the Supplier for the use of the software as notified to the Customer through the Customer’s online account with the Supplier. The Fee will be in United States dollars, unless otherwise indicated.
Insolvency Event: the occurrence of any one or more of the following events in relation to a party:
(a) it is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
(b) any step is taken to appoint a receiver, a receiver and manager, a liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business;
(c) an administrator is appointed to it under section 436A, section 436B or section 436C of the Corporations Act;
(d) a controller (as defined in section 9 of the Corporations Act) is appointed to it or any of its assets;
(e) an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;
(f) any step is taken to enter into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
(g) it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
(h) it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act;
(i) a notice is issued under section 601AA or section 601AB of the Corporations Act and not withdrawn or dismissed within 15 Business Days;
(j) it ceases to carry on business or threatens to do so, other than in accordance with the terms of this Agreement; or
(k) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in paragraphs (a) to (k) of this definition.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer programs, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
License Agreement and Limited Warranty: means the license agreement and limited warranty which incorporates these Terms.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Product Level: the tiered product levels available for purchase from the Supplier at any given time.
Third Party Technology: any website, software application, or other technology developed by a person other than the Supplier. Related Body Corporate: has the meaning given to that term in section 50 of the Corporations Act.
Site: the premises from which the Customer carries out its business as notified to the Supplier in writing from time to time.
Software: the Wilcom EmbroideryStudio software provided by the Supplier to the customer on a subscription basis and any Maintenance Release which is acquired by the Customer during the subsistence of this Agreement.
Source Code Materials: the source code of the Software, and all technical information and documentation required to enable the Customer to modify and operate it.
Subscription Term: twelve months from the Commencement Date.
Subsidiary: a "subsidiary" as defined in section 46 of the Corporations Act.
Support Policy: the website detailing the Supplier’s support policy available at www.wilcom.com.
Terms: means these terms and conditions.
Warranty Period: a period of 90 days from the date of delivery of the Software.
1.2 Clause and paragraph headings will not affect the interpretation of this Agreement.
1.3 Unless the context otherwise requires:
(a) words in the singular will include the plural and in the plural will include the singular;
(b) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(c) a reference to one gender will include a reference to the other genders; and
(d) any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the License Agreement and Limited Warranty, the provision in the body of the License Agreement and Limited Warranty will take precedence.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
2 Acknowledgement and Account
2.1 The Customer acknowledges and agrees to be bound by these Terms and the License Agreement and Limited Warranty by doing any of the following:
(a) placing an order for, or otherwise purchasing a subscription of the Software;
(b) downloading the Software on a subscription basis;
(c) signing any document which incorporates these Terms;
(d) paying Fees pertaining to the Software; or
(e) otherwise acting in a manner that constitutes acceptance of these Terms.
2.2 Before using the Software, the Customer must create an account with the Supplier (Account). The Customer must provide accurate and truthful details as well as a valid method for payment of the Fees to the Supplier when creating the Account. The Customer must update all Account details with the Supplier when those details change.
2.3 The Supplier reserves the right to suspend or terminate the Customer’s Account or the Customer’s access to the Software if the Supplier discovers that Customer has, at any time, provided false, inaccurate, incomplete or misleading information to the Supplier.
3.1 The Supplier or authorised reseller of the Supplier will make available for download one copy of the Software to the Customer at the Site within two business days of the Commencement Date.
4.1 In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence (subject to the terms of the License Agreement and Limited Warranty) during the Subscription Term and any Extended Term to use the Software.
4.2 In relation to scope of use:
(a) For the purposes of clause 4.1, use of the Software will be restricted to use of the Software in object code form for the purpose of processing the Customer's data for the normal business purposes of the Customer (which will not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
(b) The Customer may not use the Software other than as specified in clause 4.1 and clause 4.2(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(c) Except as expressly stated in this clause 4, the Customer has no right (and will not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
4.3 The Customer will not:
(a) sublicense, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; or
(c) deal in any other manner with any or all of its rights and obligations under this licence,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
4.4 The Supplier may at any time sublicense, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
4.5 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
4.6 Notwithstanding clause 7, a party assigning any or all of its rights under this licence may disclose to a proposed assignee any information in its possession that relates to this licence or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 4.6 will be made until notice of the identity of the proposed assignee has been given to the other party.
4.7 The Customer will:
(a) ensure that the number of persons using the Software does not exceed one, unless the Customer is subject to a multi-user licence for the Software in which case the Customer is limited to the number of users in that licence;
(b) keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(c) notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person;
(d) pay for broadening the scope of the licences granted under this licence to cover any unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 6.3, from such date to the date of payment; and
(e) provide all necessary information (including billing information) to the Supplier in order for the Supplier to create an account for the Customer, such account being solely for use by the Customer.
4.8 The Customer will permit the Supplier (or the Supplier's independent external auditor) to inspect and have access to the Site and any other premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which will take place at reasonable times.
5 Maintenance releases and technical support
5.1 The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. Customer will install all Maintenance Releases as soon as reasonably practicable after receipt.
5.2 The Supplier has no obligation to provide technical support to the Customer if the Customer has not installed all Maintenance Releases published by the Supplier.
5.3 Wilcom will provide technical support in accordance with the Support Policy.
6.1 The Customer will be charged the Fees for each Billing Period in advance on the first day of each Billing Period.
6.2 Unless indicated otherwise, all sums payable under this Agreement are exclusive of goods and services tax or any relevant local sales taxes, for which the Customer will be responsible.
6.3 If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment, then, without limiting the Supplier's remedies under clause 13, the Supplier may suspend the Customer’s access to the Software until the Fees have been paid.
6.4 If the Customer has purchased the Software on a monthly basis and during a Billing Period purchases additional Elements or increases the Software’s Product Level, the Fees for the next Billing Period will be increased by the price of the additional Elements and higher Product Level.
6.5 If the Customer has purchased the Software on an annual basis and during a Billing Period purchases additional Elements or increases the Software’s Product Level, the Customer will be charged an additional Fee based on the annual price of the additional Elements or higher Product Level features prorated for the time remaining in the Billing Period.
6.6 The Supplier will provide the Customer with at least thirty (30) days prior notice before changing the Fees.
6.7 Except to the extent required by law or explicitly set out in this Agreement, the Fees are non-refundable.
7 Confidentiality and publicity
7.1 Each party will, during the term of this Agreement and thereafter, keep confidential all, and will not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party will use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
7.2 No party will make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8.1 Neither party will export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
8.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out in clause 8.1; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
9 Supplier's warranties
9.1 The Supplier warrants for a period of 90 days, commencing from the date of delivery of the Product to you, that the Product is free from defects in materials and workmanship.
9.2 Other than as expressly set out in clause 9.1, the Supplier excludes all rights, representations, guarantees, conditions, warranties, guarantees, undertakings, remedies or other terms in relation to the Software to the maximum extent permitted by law.
9.3 The Supplier will in accordance with the License Agreement and Limited Warranty and subject to any applicable laws, in the event of a breach of the warranty set out in clause 9.1, at its discretion either suspend the Software and remedy the breach or provide a refund, if, subject to clause 9.4 the Software is found to be non-compliant with any warranties in this Agreement during the Warranty Period.
9.4 The Supplier is not liable for any failure of the Software to comply with the warranty set out in clause 9.1 in any of the following events:
(a) the defect arises because the Customer failed to follow the Supplier’s or an authorised reseller of the Supplier's oral or written instructions for the installation or use of the Software, or best industry practice;
(b) the Customer or someone acting with authority of the Customer alters or amends the Software without the written consent of the Supplier;
(c) the Customer used the Software outside the terms of this Agreement or for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier;
(d) the Customer has loaded the Software on equipment other than Supplier-specified or suitably configured equipment;
(e) the Customer does not install Maintenance Releases in accordance with clause 5.1; or
(f) the defect arises as a result of the Customer's wilful damage, negligence or abnormal working condition.
9.5 Once the Supplier has complied with clause 9.3, the Supplier has no further liability to the Customer, and the Customer has no further remedy (including under clause 10 and clause 13) arising out of or in connection with the Software's failure to comply with clause 9.1.
9.6 The Customer agrees to provide all information that may be reasonably necessary to demonstrate the defect or fault the subject of a warranty claim under clause 9.1, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
9.7 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
10 Limitation of liability
10.1 Subject to the other terms of this clause 10, the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms that are not expressly set out in this Agreement to the maximum extent permitted by law.
10.2 Subject to the other terms of this clause 10, the Supplier's maximum aggregate liability to the Customer in any 12-month period for any loss or damage or injury arising out of or in connection with the performance or non-performance of or the supply of Software under this Agreement, including any breach by the Supplier of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid or charges payable by the Customer under this Agreement in the 12-month period preceding the matter or event giving rise to the claim.
10.3 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
10.4 If the Supplier is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Supplier's total liability to the Customer for that failure is limited to, at the option of the Supplier:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
10.5 Subject to the other terms of this clause 10, the Supplier excludes any liability to the Customer, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement, including any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of production;
(d) loss of agreements or contracts;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of or damage to goodwill;
(h) loss of reputation; or
(i) loss of use or corruption of software, data or information.
10.6 Nothing in this Agreement limits or excludes the Supplier's liability:
(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, agents or subcontractors as applicable;
(b) where liability cannot be limited or excluded by applicable law; or
(c) for infringement of a third party's Intellectual Property Rights.
10.7 The Customer is not entitled to recover loss or obtain payment more than once in respect of any liability or loss that gives rise to more than one claim by the Customer under this Agreement.
10.8 Where the Customer is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under this Agreement, the Customer must:
(a) use its best endeavours to recover that sum before making the claim;
(b) keep the Supplier at all times fully and promptly informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
10.9 If the recovery is delayed until after the claim has been paid by the Supplier to the Customer, the recovered sum must be paid to the Supplier (up to the amount of the claim paid by it) after deduction by the Customer of all reasonable costs and expenses of recovery.
10.10 The Supplier will not be liable for any claim under or in relation to or arising out of this Agreement including a breach of any warranty unless:
(a) the Customer has first made a claim under any insurance policy held by the Customer that may cover that claim; and
(b) that claim has been denied in whole or partly by the relevant insurer.
10.11 If the Customer recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of this Agreement and that amount is less than the loss or damage incurred by the Customer, the amount of the shortfall will be the amount of the Customer's loss for the purposes of this Agreement.
10.12 Notwithstanding anything else in this clause 10, the Supplier's liability will be reduced to the extent the loss or damage is caused by or contributed to by the Customer, the Customer's employees, agents or contractors.
10.13 All dates supplied by the Supplier for the delivery of the Software will be treated as approximate only. The Supplier will not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
10.14 All references to "the Supplier" in this clause 10 will, for the purposes of this clause, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom will have the benefit of the exclusions and limitations of liability set out in this clause.
11.1 This Agreement will commence on the Commencement Date and continue for the Term.
11.2 At the end of the Subscription Term and any Extended Term, the Agreement will automatically renew for a further Term equal to one year where the Customer purchased the software on an annual basis or for one month where the Customer purchased the software on a monthly basis (Extended Term) unless the Customer provides notice to the Supplier no less than 30 days before the end of the Subscription Term or Extended Term as applicable.
12 Intellectual property rights
12.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and will belong to the Supplier, and the Customer will have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement and the License Agreement and Limited Warranty.
12.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the Australian Intellectual Property Rights of a third party (Claim) and will be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this clause 11.2 will not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Agreement, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
12.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations under clause 12.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
12.4 If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this Agreement;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 9.1 and the Customer will have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
12.5 Notwithstanding any other provision in this Agreement, clause 12.2 will not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
12.6 This clause 12 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 10.1.
13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any undisputed amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement and that breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) an Insolvency Event occurs in relation to the other party; or
(e) there is a Change of Control of the other party without the consent of the non-defaulting party, such consent not to be unreasonably withheld or delayed.
13.2 Without limiting its other rights or remedies, the Supplier may suspend supply of the Software under this Agreement if:
(a) the Customer becomes subject to an Insolvency Event;
(b) the Supplier reasonably believes that the Customer is about to become subject to an Insolvency Event; or
(c) the Customer fails to pay any amount due under this Agreement on the due date for payment.
13.3 On termination for any reason:
(a) all rights granted to the Customer under this Agreement will cease;
(b) the Customer will cease all activities authorised by this Agreement; and
(c) the Customer will immediately pay to the Supplier any sums due to the Supplier under this Agreement.
13.4 The following clauses survive termination or expiry of this Agreement together with any other term which by its nature is intended to do so:
(a) Clause 10 (Limitation of liability);
(b) Clause 7 (Confidentiality);
(c) Clause 13 (Termination);
(d) Clause 14 (Dispute resolution); and
(e) Clause 29 (Governing law and jurisdiction).
14 Dispute resolution
14.1 If a dispute arises out of or in connection with this Agreement, or the performance, validity or enforceability of it (Dispute) then the parties must comply with the procedure set out in this clause 13.
14.2 Either party may give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents.
14.3 On receipt of a Dispute Notice:
(a) representatives of the Supplier and representatives of the Customer must attempt in good faith to resolve the Dispute;
(b) if the representatives of the Supplier and representatives of the Customer are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the parties agree to endeavour in good faith to settle the Dispute by mediation administered by the Australian Commercial Disputes Centre. To initiate the mediation, a party must serve notice in writing (Mediation Notice) to the other party to the Dispute, requesting a mediation. The mediation will start not later than 30 days after the date of the Mediation Notice.
14.4 Subject to clause 14.5, no party may commence any court proceedings in relation to the whole or part of the Dispute until 60 days after service of the Mediation Notice, provided that the right to issue proceedings is not prejudiced by a delay.
14.5 This clause 13 is not intended to prevent any party from seeking urgent injunctive or similar relief.
15.1 In this clause 14, the following definitions apply:
(a) Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.
(b) APP: an Australian Privacy Principle as defined in the Privacy Act.
(c) APP Entity: an APP Entity as that term is defined in the Privacy Act.
(d) Eligible Data Breach: has the meaning given to that term in the Privacy Amendment (Notifiable Data Breaches) Act 2016 (Cth), occurring on or after 22 February 2018.
(e) Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information the Supplier has collected, held, used or disclosed in the course of or relating to this Agreement.
(f) Investigation: the investigation at clause 15.6(c).
(g) Personal Information: has the meaning given to that term in the Privacy Act.
(h) Sensitive Information: has the meaning given to that term in the Privacy Act.
15.2 The Supplier warrants that it complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.
15.3 The Customer warrants that it complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.
15.4 If the Supplier collects, holds, uses or discloses Personal Information in the course of or relating to this Agreement, the Supplier must:
(b) only use Personal Information for the purpose of performing its obligations under this Agreement;
(c) comply with any directions given by the Customer relating to:
(i) Personal Information to the extent that they are not inconsistent with the requirements of this clause 14;
(ii) the handling and response to any of the events in clause 15.4(m)(i) and clause 15.4(m)(ii);
(iii) a Data Incident, Investigation or Eligible Data Breach; and
(iv) a notification required under clause 15.4(m)(iii), and in which case the Supplier agrees to assist the Customer to prevent, resist or limit any such disclosure.
(e) ensure that any personnel of the Supplier (including for the purposes of this clause 14.4(f) employees, contractors, subcontractors and advisors) who are required to access or handle Personal Information are made aware of the obligations set out in this clause 14.4;
(f) protect Personal Information from:
(i) misuse, interference and loss; and
(ii) unauthorised access, modification or disclosure.
(g) ensure that Personal Information is only made available to Supplier's personnel on a need-to-know basis as necessary for the Supplier's performance of its obligations under the agreement;
(h) ensure that any subcontract entered into with an approved subcontractor for the purpose of fulfilling the Supplier's obligations under the agreement contains the same or equivalent terms as the Supplier has under this clause 14;
(i) not do anything which impairs the accuracy, currency or completeness of the Personal Information;
(j) ensure that Personal Information is accurate, up-to-date, complete and relevant;
(k) immediately notify the Customer in writing if it becomes aware of the Supplier's or any third party's any actual or possible:
(i) breach of any of the obligations in this clause 14; or
(ii) misuse or loss of Personal Information,
whether by the Supplier or any third party.
(l) anonymise, return or destroy Personal Information as required by law;
(m) notify the Customer immediately in writing if the Supplier becomes aware of any:
(i) request regarding access to, or correction of, any Personal Information;
(ii) any complaint about the handling of Personal Information; and
(iii) disclosure of Personal Information required by law.
15.5 The Customer warrants that it will not provide any Sensitive Information to the Supplier unless that information is necessary for the Supplier to perform its obligations under the agreement and then only with the Supplier's specific written consent;
15.6 In addition to the Supplier's obligations in this clause 14, the Supplier also commits to take each of the following actions if it becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred:
(a) immediately take any steps, and bear any costs, of containing and resolving the Data Incident and preventing any further serious harm to affected individuals (for the avoidance of doubt, this obligation is ongoing);
(b) immediately notify the Customer in writing stating:
(i) the nature and details of the Data Incident;
(ii) the specific Personal Information affected;
(iii) the actions taken by the Supplier including those required at clause 15.6(a); and
(iv) the recommended next steps for each of the parties and the affected individuals;
(c) identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within 30 days of becoming aware of the Data Incident;
(d) provide a full, unedited and unredacted copy of the report of the investigation in clause 15.6(c) to the Customer on completion (for the avoidance of doubt, the Supplier agrees not to withhold any information from the report and expressly waives its right to any claim of privilege (including legal professional privilege) to any part of report);
(e) engage in regular open and good faith discussions with the Customer regarding:
(i) the conduct and outcomes of the Investigation;
(ii) its ongoing actions to contain and resolve the Data Incident and prevent any further serious harm to affected individuals at clause 15.6(a); and
(iii) in the case of an Eligible Data Breach whether the Customer or the Supplier will make the relevant notifications under the Privacy Act; and whether and to what extent any public or media statements will be made (in each case, the Customer's decision to be final); and
(f) where the Supplier is making the relevant notifications at clause 15.6(e)(iii), the Supplier must submit the notifications to the Customer for approval before they are made (such approval to be given promptly and not to be unreasonably withheld).
15.7 Each party will ensure that its employees, contractors or advisors who are required to handle Personal Information in the course of this Agreement are made aware of the obligations of that party in this clause 14.
15.8 Each party is responsible for the acts and omissions of its respective personnel (including subcontractors and advisors), and a breach by any such personnel is a breach by that party.
15.9 The Customer:
(a) acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use Personal Information disclosed to it in the course of and for the purpose of this Agreement; and
(b) indemnifies the Supplier for any claim brought by any third party in connection with any act or omission by the Supplier in relation to a third party's Personal Information to the extent that such act or omission resulted directly from the Customer's instructions or a breach by the Customer of their obligations in this clause 14.
16 Third Party Providers
16.1 The Customer acknowledges that the Supplier may use Third Party Technology in providing the Software.
16.2 The Supplier makes no representation or warranty and has no liability or obligation in relation to the content or use of Third Party Technology, or any transactions completed, correspondence, and any agreement entered into by the Customer, with any third party. Any agreement entered into and any transaction completed with any third party is between the Customer and the relevant third party, and not the Supplier.
16.3 The Suppler recommends that the Customer refers to all third party terms and conditions and third party privacy policies prior to using Third Party Technology.
16.4 The Customer understands and agrees that its access to the Software through Third Party Technology is at the Customer’s sole risk.
17.1 A notice or other communication to a party under this Agreement (Notice) must be:
(a) in writing and in English;
(b) signed by the sender or a person authorised to sign on behalf of the sender; and
(c) addressed to that party in accordance with the details provided by each party to the other from time to time.
17.2 A Notice must be given by one of the methods, and is regarded as given and received at the time, set out in the table in this clause 16.2. However, if this means the Notice would be regarded as given and received outside the period between 9.00 am and 5.00 pm (addressee's time) on a Business Day (Business Hours Period), then the Notice will instead be regarded as given and received at the start of the following Business Hours Period.
Notice delivery method
When Notice is regarded as given and received
By hand to the nominated address = When delivered to the nominated address.
By pre-paid post to the nominated address = At 9.00 am (addressee's time) on the second Business Day after the date of posting.
By email to the nominated email address = When the email (including any attachment) comes to the attention of the recipient party or a person acting on its behalf.
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
19 No waiver
19.1 No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
19.2 Words or conduct referred to in clause 19.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
20 Assignment and other dealings
20.1 The Customer may not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the Supplier.
20.2 A breach of clause 20.1 by a party entitles the other parties to terminate this Agreement.
20.3 Clause 20.2 does not affect the construction of any other part of this Agreement.
The Supplier may amend these Terms from time to time by publishing the updated Terms on https://www.wilcom.com, these amended Terms will be effective from the date of publication. The Customer may, within 30 days of becoming aware of the amended Terms, if such amended Terms are unacceptable to the Customer terminate this Agreement.
22.1 If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
22.2 Clause 22.1 does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Agreement.
23 No merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.
24 Relationship of the parties
24.1 Nothing in this Agreement gives a party authority to bind any other party in any way.
24.2 Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.
24.3 This Agreement does not create a relationship of employment, agency or partnership between the parties or their respective personnel.
24.4 Neither party grants the other the right to use its trade marks, trade names, or other designations in any promotion or publication without prior written consent.
25 Exercise of rights
25.1 No party is required to act reasonably in exercising any right, power, authority, discretion or remedy under or in connection with this Agreement, including the granting or withholding of any approval or consent, unless expressly required to do so by the terms of this Agreement.
25.2 Any party may (without being required to act reasonably) make any consent or approval required to be given by it under or in connection with this Agreement, or a waiver of any of its rights, powers, authority, discretion or remedies arising under or in connection with this Agreement, subject to conditions that must be complied with by the party seeking to rely on the consent, approval or waiver.
26 Remedies cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.
27 Entire agreement
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
28 No reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this Agreement.
29 Governing law and jurisdiction
29.1 This Agreement is governed by the law in force in New South Wales.
29.2 Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
29.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 29.2 on the basis that:
(a) any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or
(b) the courts described in clause 29.2 do not have jurisdiction.