Updated 1st July 2020
UPDATES TO THIS AGREEMENT
This Agreement will be reviewed from time to time to take account of new laws and technology, changes to our operations and practices and the changing business environment.
Legal Terms and Conditions
The Provider and the Customer agree as follows.
1. Definitions and Interpretation
1.1 In this Agreement the following expressions have the following meanings, unless otherwise stated:
“Agreement” means these terms and conditions as amended by us from time to time
“Authorised User” means those of your employees, agents and contractors who are authorised by you to use the Software and Services;
“Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;
“Charges” means the charges in accordance with this Agreement;
“Consultants” means any employees, contractors, agents or consultants that we use to provide the Software and/or perform the Services;
“Confidential Information” means all information relating to the Field disclosed by or on behalf of each party and its affiliates, and any new and novel combinations thereof, whether disclosed in writing, verbally or by any other means and regardless of the date it was disclosed.
“Customer Data” has the meaning in clause 6.5;
“Delivery Date” means an estimated delivery date for the provision of a Service
“Developed IP” is defined in clause 6.3;
“Field” means, in relation to:
- the Customer – the Customer and its respective affiliates’ product-related mass spectrometry and methods (including method customisation) for deriving and analysing mass spectrometry data; and
- Mass Dynamics – Mass Dynamics and its respective affiliates’ software and related services for the analysis of mass spectrometry data.
“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trademarks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;
“Privacy Laws” means the Privacy Act 1988 (Cth) and the General Data Protection Regulation (EU 2016/679) (as applicable);
“Provider IP” is defined in clause 6.2;
“Purpose” means our provision of the Software and Services to the Customer in accordance with this Agreement;
“Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);
“Services” means the services that we provide to you under this Agreement
“Software” means the Software we provide under this Agreement as defined in the Key Terms and which includes any associated Software, technology, code and all Intellectual Property Rights contained therein; and
“Term” means the term of this Agreement as defined in the Key Terms.
2. Use of the Software
2.1 You will not, and you will ensure the Authorised Users do not:
(a) modify the Software or merge any aspect of the Software with another programme other than as expressly provided under this Agreement;
(b) record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;
(c) licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;
(d) engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
(e) access, store, distribute or transmit:
- viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;
- material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
- material that facilitates illegal activity; or
- material that abuses or causes damage or injury to any person or property;
(f) provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of the Software;
(g) share any features of the Software that are not publicly available with any unauthorised third party; and
(h) engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein).
2.2 All rights granted to you under this Agreement are personal, and these rights must not be leased, assigned, sold, licensed, resold or transferred to any third party in any manner whatsoever. You must not in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.
2.3 Any breach of this clause 2 constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Software or the Services, and/or take further actions against you for breach of this Agreement.
3.1 We will perform the Services in return for payment of the applicable Charges.
3.2 All Services will be provided based on the information and specifications supplied by you. All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us or any third party. It is not within the scope of our obligations to enquire as to, or to verify the accuracy or completeness of information that we receive from you or any third parties.
3.3 We are not obliged to provide any Services under this Agreement that are not described in this Agreement.
3.4 We will use reasonable endeavours to provide the Services promptly or by any applicable Delivery Date or such other dates as agreed by the parties in writing. Any Delivery Date or time quoted for delivery, commencement or completion of any part of the Services is an estimate only and time will not be of the essence.
3.5 We may engage Consultants to perform our obligations under this Agreement at our discretion.
4. Your obligations
4.1 You acknowledge that our ability to be able to provide the Software and the Services to you without delay or interruption is dependent on your full and timely cooperation. You will (and will ensure that the Authorised Users will):
(a) cooperate with and assist us in the supply of the Software and the Services;
(b) promptly provide us with full and accurate information, data and explanations as and when required;
(c) comply with all applicable laws, regulations and industry standards with respect to your activities and obligations under this Agreement;
(d) ensure that your network and systems comply with the relevant specifications and guidelines provided by us from time to time; and
(e) comply with all reasonable directions and guidelines from us as advised from time to time.
4.2 You must procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Software or the Services to you.
4.3 It is your responsibility to ensure that the Key Terms, invoice or any other written communications we send to you set out the correct information in relation to your business and that you notify us of any changes to this information during the Term.
5. Charges and Payment
5.1 You will pay us the Charges to access and use the Software and the Services in accordance with this Agreement.
5.2 The Charges and all other amounts quoted by us exclude GST and, unless stated otherwise in Item 10 of the Key Terms, are stated in United States Dollars (USD).
5.3 If payment of the Charges is not received by any due date either described in the Key Terms or on a tax invoice provided to you, we will be entitled (without prejudice to any other right or remedy available to us under this Agreement or at law) to:
(a) withhold provision of the Services, or suspend your access to any or all of the Software of the Services until payment of the outstanding invoice (including any interest levied pursuant to clause 5.3(b)) is received in full by us;
(b) charge interest on the outstanding amount at the Default Rate set out in Item 12 of the Key Terms; and
(c) terminate this Agreement pursuant to clause 13.
5.4 You will make all payments for the Charges without any deduction for tax unless a tax deduction is required by law. If you are required to make a tax deduction by law, the amount due will be increased to the amount that (after making the tax deduction) upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.
5.5 We may, at any time during the Term, increase the Charges by providing you with at least [60 days] prior written notice. If you do not agree to these changes, you may terminate the Agreement by giving us [thirty (30) days'] written notice no later than [fourteen (14) days] after the date you received written notice of the changes. If you do not respond within this timeframe, then you will be deemed to have accepted the new Charges.
5.6 No refunds of the Charges will be given, except to the extent agreed in writing and only as strictly required under law and this Agreement.
6. Intellectual Property
6.1 Subject to clauses 6.2 and 6.3, we grant you a personal, non-exclusive, non-transferable and revocable license to permit the Authorised Users to access and use the Software and the Services (including the Intellectual Property Rights contained therein) in accordance with your Subscription throughout the world for the duration of the Term.
6.2 All rights, title or interest in and to the Software and any information or technology that may be provided to, or accessed by you in connection with your use of the Software or Services is owned, and will remain owned by us or our licensors (“Provider IP”). Using the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP.
6.3 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP (collectively, the “Developed IP”).
6.4 You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Software and/or the Provider IP.
6.5 You retain ownership rights to data and content that you provide to us, whether by uploading to the Software or otherwise (“Customer Data”). You grant us a worldwide, perpetual, irrevocable, non-exclusive and royalty free license to access and use the Customer Data for the purpose of performing our obligations under this Agreement.
7.1 We will use reasonable endeavours to provide constant, uninterrupted access to the Software and the Services, but with any Software based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Software or the Services.
7.2 Delivery of the Services will be in accordance with the SLA. Generally, we will investigate all problems or errors in any Services, provided that you notify us in writing within seven (7) days following delivery of those Services and provided further that you give us all necessary information to investigate the matter.
7.3 To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Software provided hereunder is given or assumed by us other than as strictly required at law. You acknowledge and agree that the Software and the Services are provided on ‘as is’ basis and that you will make your own investigations into whether or not the Software and the Services are fit for your purposes.
7.4 We make no representations, warranties or guarantees:
(a) that content available on, or produced by or via, the Software is accurate, complete, reliable, current, error-free or suitable for any particular purpose. This content is provided on an ‘as is’ basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this content; or
(b) as to the availability of the Software or that the Software and/or the Services are or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking your own precautions in this respect.
8. Liability and Exclusions
8.1 Our total liability to you or any third party (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to the total Charges paid (excluding GST and expenses) by you to access and use the Software and the Services (as applicable) in the twelve (12) months immediately prior to the event(s).
8.2 You assume sole responsibility for your use of the Software and the Services (including any content contained therein) and for any reliance on, and use of, conclusions drawn from such use.
8.3 We will have no liability for any losses suffered or any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Software, the Services or any actions taken by us at your direction.
8.4 In no event will we be liable to you or any third party for any:
(a) loss of profits, revenue, goodwill or business, business interruption, corruption, loss or alteration of data, downtime costs, loss of use, failure to realise anticipated savings or for any indirect or consequential loss or damage of whatsoever nature, however caused;
(b) breach by you, any Authorised User or any third party of the Intellectual Property Rights of a third party or any laws, regulations or any relevant industry codes;
(c) viruses, worm, trojan or other malicious code introduced into, or transmitted to, you or any third party during the course of using the Software or the Services; or
(d) loss of or damage to any property belonging to you, any Authorised User or any third party or any personal injury or death arising out of or in connection with this Agreement.
8.5 The parties acknowledge that the limitations of liability contained in this clause 8 are a fair and reasonable allocation of the commercial risk between the parties.
9.1 You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees and contractors (collectively, the “Indemnified”) harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified or which the Indemnified must pay, sustain or incur as a direct or indirect result of or arising out of:
(a) breach by you or any Authorised User of any of your obligations under the Agreement;
(b) loss of, or damage to, any property belonging to you, any Authorised User or any third party or any personal injury or death arising out of or in connection with this Agreement;
(c) breach of any third party’s Intellectual Property Rights; or
(d) breach by you or any Authorised User of any law (including Privacy Laws).
10.1 Each party agrees in respect of each other’s Confidential Information, for three (3) years from the Commencement Date:
(a) to treat it as strictly confidential;
(b) to use it only for the Purpose;
(c) to copy it and reduce it to writing only as necessary for the Purpose;
(d) to disclose it to its affiliates, employees, directors and consultants only as necessary for the Purpose;
(e) to ensure that its affiliates, employees, directors and consultants comply with this clause 12;
(f) to return or destroy (at the discloser’s election) the Confidential Information to the discloser upon request except for any copies that are required by law to be retained by the receiver; and
(g) nothing in this clause 12 affects the ownership of a party’s Intellectual Property Rights.
10.2 The receiver can do anything with information it can prove by documentary evidence:
(a) Is in or has come into the public domain without it breaching this Agreement;
(b) It has developed independently as a result of its operations and activities;
(c) It has obtained from a source other than the discloser without breach of any legal obligation or without the source breaching an obligation of confidentiality;
(d) It knew before the discloser disclosed it; or
(e) It is required to disclose by law (provided the receiver gives the discloser reasonable prior written notice to enable the discloser to take appropriate measures to protect its Confidential Information).
11.1 Both parties must, in connection with this Agreement:
(a) ensure that their and their employees, contractors and agents are aware of their obligations under all applicable Privacy Laws;
(b) at all times comply with their obligations under applicable Privacy Laws; and
(c) take reasonable steps to assist the other party to comply with their obligations under applicable Privacy Laws as may be notified from time to time.
12. Media and Publicity
12.1 Each party agrees that they will not issue public-facing or media statements regarding the subject matter of this Agreement without first obtaining the consent of the other party (which may not be unreasonably withheld) as to form and subject matter of the relevant publicity materials.
12.2 The Customer will use reasonable endeavours to cooperate with Mass Dynamics in relation to promotion of the project such as participating in case studies, media statements, joint presentations and providing testimonials.
13. Term and Termination
13.1 We may terminate this Agreement (or at our discretion the supply to you of the Software or the Services) immediately if you fail to pay any invoice and such sum remains unpaid for fourteen (14) days.
13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or
(b) the other party is bankrupt, enters into a voluntary arrangement for its winding up or administration, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.
13.3 On termination of this Agreement for any reason, we will be entitled to immediate payment for all Charges properly incurred up to the date of termination and during any applicable notice period.
13.4 On the termination of this Agreement, you will return all of our confidential information, Provider IP, Developed IP and any other property belong to us in your possession, control or custody.
14.1 You will not attempt to employ, either directly or indirectly or as consultants, any of our Consultants during the term of this Agreement without our prior written consent.
15. Situations or events outside our reasonable control
15.1 There are certain situations or events that may occur which will not be within our reasonable control. Where this occurs, we will notify you of these circumstances and attempt to recommence providing the Software and/or the Services (as applicable) as soon as we are able. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Software and/or the Services.
16.1 Any notice required to be given pursuant to this Agreement will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in this Agreement (or to such other address as either party may from time to time notify the other in accordance with this clause).
16.2 A notice given under clause 16.1 will be deemed to have been delivered 24 hours after the email is sent.
17. Dispute Resolution
17.1 If a dispute arises in relation to this Agreement, a party (“Provider”) may give the other party (“Recipient”) a written notice adequately identifying the matters in dispute (“Dispute Notice”).
17.2 Within 10 days of the Provider giving a Dispute Notice, the parties must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Provider may give the Recipient written notice requiring the dispute to be referred to mediation (“Mediation Notice”).
17.3 If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.
17.4 The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.
17.5 If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause, with the parties agreeing that the mediator will make a binding resolution.
17.6 No party may commence litigation unless they have first complied with this clause, except where the party is seeking urgent interlocutory relief.
17.7 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
17.8 This clause 17 survives the termination of this Agreement.
18.1 Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.
18.2 The provisions of this Agreement that are capable of having effect after the termination of this Agreement will remain in full force and effect following the termination of this Agreement.
18.3 Neither party may, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any rights or obligations under this Agreement.
18.4 If either party chooses to waive or ignore a breach of the Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.
18.5 Nothing in this Agreement is intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.
18.6 This Agreement, and the relationship between the parties contemplated by it, is not intended to be exclusive.
18.7 If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect.
18.8 This Agreement is governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
18.9 This Agreement may be executed electronically and in any number of counterparts. All counterparts together will be taken to constitute one instrument.
18.10 This Agreement constitutes the entire agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement