1.             This Agreement

This Agreement sets out the terms on which we will provide the Software, ICT, Managed Services and/or Business Consulting Services to you. Where our Letter, Consulting Report, Proposal or offer is addressed to more than one Addressee, each Addressee is a party to, and is bound by, the terms of this Agreement. We will treat you as having accepted this Agreement if you continue to instruct us after you receive it.

2.             Term

This Agreement starts on the date you sign and return the Letter, Consulting Report, Proposal or offer to us or when we first start work on the Software, ICT, Managed Services and/or Business Consulting Services for you, whichever is first. Unless it is terminated earlier, this Agreement terminates when we have completed providing the Software, ICT, Managed Services and/or Business Consulting Services to you and you have paid us our Fees.

3.             Our Services

3.1          We will provide the Software, ICT, Managed Services and/or Business Consulting Services to you in accordance with this Agreement and with the degree of skill, care and diligence expected of a professional providing services of the same kind.

3.2          We will use all reasonable efforts to complete the Software, ICT, Managed Services and/or Business Consulting Services within any agreed time frame.

4.             Our team

4.1          We will use reasonable efforts to ensure that our Representatives named in the Letter, Consulting Report, Proposal or offer are available to provide the Software, ICT, Managed Services and/or Business Consulting Services. However, if we need to, we may replace or reassign any Representative at any time on reasonable notice to you.

4.2           Each of us agrees that, during the term of this Agreement and for a period of six months after it ends, neither of us will directly or indirectly solicit for employment any Representative of the other who is involved with the Software, ICT, Managed Services and/or Business Consulting Services. However, both of us may advertise or recruit generally.

5.             Provision of Services

5.1          You acknowledge that:

(a)           we are a separate and independent legal entity operating under the name Kelpee.

(b)           Our Software, ICT, Managed Services and/or Business Consulting Services are provided by us and not by any other Firm; and

(c)           neither us nor any other Firm is liable for each other’s acts or omissions.

5.2          Sometimes we may use other Firms to help us to provide the Software, ICT, Managed Services and/or Business Consulting Services to you. Where this happens, we will be responsible for any work undertaken by another Firm and you agree that to the extent permitted by law:

(a)           none of the Firms, apart from us, will be responsible to you; and

(b)           you will not bring any claim or proceedings in connection with the Software, ICT, Managed Services and/or Business Consulting Services or this Agreement against any of the other Firms that we may use to provide the Software, ICT, Managed Services and/or Business Consulting Services to you.

5.3          Any Firm that helps us to provide the Software, ICT, Managed Services and/or Business Consulting Services to you will rely on subclause 5.2 and is, to the extent permitted by the Law of any relevant jurisdiction, an intended third-party beneficiary of, and entitled to enforce this Agreement as if it were a party to it.

5.4          If we provide you with Licensed Software, ICT, Managed Services and/or Business Consulting Services, you acknowledge that:

(a)           the relevant Licensed Entity will provide the Licensed Software, ICT, Managed Services and/or Business Consulting Services directly to you;

(b)           we enter into this Agreement as agent for the Licensed Entity; and

(c)           the terms of this Agreement apply to the Licensed Software, ICT, Managed Services and/or Business Consulting Services.

6.             Confidentiality

6.1          Each of us agrees to protect and keep confidential any Confidential Information that is given to us by the other.

6.2          Except as set out in this Agreement, or where both of us agree otherwise in writing, we will only use or disclose your Confidential Information to provide the Software, ICT, Managed Services and/or Business Consulting Services to you or other Software, ICT, Managed Services and/or Business Consulting Services you may request.

6.3          Where relevant, we may use, disclose and transfer your Information to our Related Entities and Representatives, who will use and disclose it only to provide the Software, ICT, Managed Services and/or Business Consulting Services to you.

6.4          We may disclose your Information to our own professional advisers and insurers on a confidential basis.

6.5          Subject to subclause 6.6, either of us may disclose any Confidential Information to the extent that it is required to be disclosed by any law, order of any court, tribunal, authority or regulatory body, rules of any stock exchange or any professional obligations or requirements.

6.6          A party disclosing any Confidential Information under subclause 6.5 must, where practical and to the extent permitted by law, notify the other of the requirement to disclose and only disclose the minimum Confidential Information required to comply with the law or requirement.

6.7          You agree that we may aggregate your Information and use and disclose that information in de-identified form as part of research and advice, including, without limitation, benchmarking Software, ICT, Managed Services and/or Business Consulting Services.

6.8          We will return your Information to you at any time at your request. We will also destroy any copies of your Information that we possess if you ask us to. However, we are entitled to retain a copy of any Information you provide to us or which forms part of our Work or our Working Papers, or which we are required to retain by law, provided that we will continue to keep this Information confidential in accordance with this Agreement.

7.             Personal Information and Privacy

7.1          We will handle Personal Information in accordance with the Privacy Law and our privacy policy which is available at https://kelpee.com/privacy-policy/ or on request.

7.2          You agree to work with us to ensure that both of us meet any obligations that each of us may have under the Privacy Law including, where relevant, notifying the individual to whom the Personal Information relates of who we are and how we propose to use and disclose their information.

7.3          Where you provide us with any Personal Information, you confirm that you have collected the Personal Information in accordance with the Privacy Law, that you are entitled to provide the Personal Information to us and that we may collect, use and disclose the Personal Information for the purpose of providing the Software, ICT, Managed Services and/or Business Consulting Services to you or as otherwise permitted by this Agreement.

8.             Intellectual Property

8.1          Unless otherwise agreed, each of us retains ownership of all Intellectual Property rights in material owned or created independently of this Agreement. None of that Intellectual Property is assigned or transferred by way of this Agreement.

8.2          You agree that all Intellectual Property rights in:

(a)           Our Work and any other material, methods or content developed by us under this Agreement; and

(b)           Any improvements, modifications or enhancements to services

will vest in and are owned by us upon creation.

8.3          We give you a royalty-free, non-exclusive, perpetual, world-wide licence to use and reproduce any Reports for the Purpose for which the Report was prepared and any related incidental internal purposes in accordance with the terms of this Agreement.

8.4          You agree to provide us with a royalty-free, non-exclusive, perpetual license to use your logos and trade marks in our Work unless you tell us otherwise.

8.5          We may use third-party materials where needed to provide the Work. Use of third-party materials may be subject to creative commons or open-source licensing terms, or any third-party licensing terms as notified by us to you.

9.             Our Work

9.1          Our Work is for your exclusive use and must be used only by you and only for the Purpose.

9.2          Unless we give our Consent:

(a)           our Work must not be used or disclosed for any other purpose or made available to any other person, except your Professional Advisers and Auditor, on the terms discussed in subclause 9.3, or except to the extent permitted by the licence in subclause 8.3 ;

(b)           our Work and the Software, ICT, Managed Services and/or Business Consulting Services may not be relied on by anyone other than you; and

(c)           you must not name us or refer to us, our Work or the Software, ICT, Managed Services and/or Business Consulting Services in any written materials (other than to your Professional Advisers and Auditor), or any publicly filed documents, except as required by law, without prior written approval from us.

9.3          You may provide a copy of our Report to:

(a)           your Professional Advisers and Auditor, provided that you ensure that each Professional Adviser and Auditor:

(i)            is aware of the limits placed on the use of our Report by this Agreement, including that they may not rely on the Report;

(ii)           for the Professional Adviser, uses our Report only to advise you in relation to the Software, ICT, Managed Services and/or Business Consulting Services or, for the Auditor, uses our Report only in conducting the Audit; and

(iii)          treats our Report as confidential and does not use or disclose our Report in a manner that is not expressly permitted by this Agreement;

(b)           any other person who is acceptable to us, with our Consent, but only where that person has first executed an agreement provided by us.

9.4          We are not responsible to anyone who is provided with or obtains a copy of our Work without our Consent.

9.5          If we give you our Work in draft form or orally, we do so only on the basis that you may not rely on it in that form. Accordingly, we will not be responsible if you or anyone else relies on our draft Work or oral comments or advice.

9.6          You acknowledge that the final or signed copy of our Letter, Consulting Report, Proposal or offer is the definitive version.

9.7          Sometimes, circumstances may change after we have provided our final Work to you; unless we agree with you otherwise, we will not update any final Work we have provided to you.

9.8          You acknowledge that any use of or reliance on our Work that is contrary to this Agreement may expose us to a claim from someone with whom we have no relationship or whose interests we have not considered in providing the Software, ICT, Managed Services and/or Business Consulting Services.

9.9          Accordingly, you agree to indemnify us against any Loss we may suffer or incur in respect of any claim or action by a third party that arises as a result of:

(a)           any use or distribution of, or reliance on, our Work that is contrary to the terms of this Agreement or a Consent; or

(b)           any access to or use of our Work, by any of your Professional Advisers or Auditor.

9.10        This indemnity does not apply to any Loss incurred in defending a claim or action by a third party:

(a)           that results from any wilful misconduct or fraudulent act or omission by us;

(b)           where that third party has signed an agreement with us that provides that it can rely on our Work; or

(c)           where we have provided Consent that our Work may be included in publicly available documents.

10.          Our Fees

10.1        The Fees and the basis on which they are calculated are set out in this Agreement. We may review the Fees where:

(a)           an Unexpected Delay occurs;

(b)           there is a change in the scope of the Software, ICT, Managed Services and/or Business Consulting Services we agreed to provide to you; or

(c)           you do not accept this Agreement within three months of the date of the Letter, Consulting Report, Proposal or offer.

10.2        You agree to pay us the Fees for the Software, ICT, Managed Services and/or Business Consulting Services in accordance with this Agreement.

10.3        Unless we state otherwise, our Fees exclude GST. You agree to pay any GST imposed on us, now or in the future, in relation to this Agreement. Where GST is payable on any taxable supply made under this Agreement, you agree that the Fee payable for this supply will be increased by an amount equivalent to the GST payable by us in respect of that supply.

10.4        We will charge you at cost for any expenses we incur in providing the Software, ICT, Managed Services and/or Business Consulting Services to you. We will tell you what these expenses are before we incur them if they are anything other than incidental.

10.5        Unless we agree with you otherwise, we will use business class (or equivalent) for travel overseas and between the east and west coasts of Australia, and economy class for travel within the rest of Australia.

10.6        We will also charge you an administration, overhead, telecommunications charge, and uncalculated billable time, which is calculated at 10% of our Fees unless we agree otherwise. This charge covers all our out-of-pocket expenses such as telecommunications, stationery and uncalculated billable time, project escalations and postage.

10.7        We will invoice you weekly in arrears for the Fees (unless we agree with you otherwise) and you agree to pay our invoice upon receiving it. You agree to pay any undisputed portions of an invoice even if there is a dispute between us about that invoice or another invoice. Where amounts remain due and unpaid, we may charge you interest at an annual rate of 2% over the Bank Bill Swap Rate published in the Australian Financial Review on the date payment is due.

10.8        Without limiting any other rights we may have, if you do not pay our invoices on time, we are entitled to:

(a)           immediately suspend or terminate the Software, ICT, Managed Services and/or Business Consulting Services, in whole or part,

(b)           immediately suspend or terminate any licence to access and/or use the Software Systems & Services; and

(c)           retain or withhold any Information we may hold in relation to the Software, ICT, Managed Services and/or Business Consulting Services or any Work we have done for you.

10.9        If we are required to provide Information about you or the Software, ICT, Managed Services and/or Business Consulting Services to comply with a statutory obligation, court order or other compulsory process, you agree to pay all of our reasonable costs and expenses we incur in doing so.

11.          What you agree to do

11.1        You agree to co-operate with us and provide us with all reasonable and necessary assistance so that we can provide the Software, ICT, Managed Services and/or Business Consulting Services to you. This includes providing us with timely and reasonable access as appropriate, to your premises, facilities, Information and Representatives.

11.2        In addition to any responsibilities you may have that are set out in the Letter, Consulting Report, Proposal or offer, you are responsible for:

(a)           the performance of your Representatives;

(b)           making timely decisions in connection with the Software, ICT, Managed Services and/or Business Consulting Services;

(c)           designating a competent employee to oversee the Software, ICT, Managed Services and/or Business Consulting Services;

(d)           evaluating the adequacy of the Software, ICT, Managed Services and/or Business Consulting Services, as they have been described in the Letter, Consulting Report, Proposal or offer, for your particular purposes and needs;

(e)           providing us with accurate and complete Information. Where any Information that we require in order to provide the Software, ICT, Managed Services and/or Business Consulting Services is to be provided by someone else, you are responsible for ensuring that Information is provided to us. You will need to give us all Information that is relevant to the Software, ICT, Managed Services and/or Business Consulting Services, even if the same Information has been given to us previously during another engagement; and

(f)            updating any Information where there has been a material change to that Information, including telling us if any of your circumstances change during the course of the Software, ICT, Managed Services and/or Business Consulting Services.

11.3        You acknowledge that:

(a)           the Software, ICT, Managed Services and/or Business Consulting Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations will be your responsibility, and made by you;

(b)           our ability to provide the Software, ICT, Managed Services and/or Business Consulting Services depends on you meeting your responsibilities under this Agreement and instructing us or responding to our requests in a timely and effective manner; and

(c)           we are entitled to and will rely on Information provided by you, the decisions you make and any approvals you give; and

(d)           we will not be liable for any Loss or default that arises because you do not fulfil your obligations.

12.          Unexpected Delay

12.1        We are not responsible to you or anyone else for any failure in providing the Software, ICT, Managed Services and/or Business Consulting Services caused by an Unexpected Delay. We will tell you if there is a delay that will affect the Software, ICT, Managed Services and/or Business Consulting Services and the cause of the delay, if known. You acknowledge that this Agreement will be varied to include any change to the scope of the Software, ICT, Managed Services and/or Business Consulting Services, the Fees or the timeframes for completion of the Software, ICT, Managed Services and/or Business Consulting Services if any delay requires it.

12.2        If we are required to perform/provide additional Software, ICT, Managed Services and/or Business Consulting Services because of an Unexpected Delay, then this Agreement will also be varied to include those additional Software, ICT, Managed Services and/or Business Consulting Services and any additional Fees that apply.

13.          Our Responsibility to You

13.1        Where the law requires it, our liability to you will not be limited. Otherwise, our aggregate liability to you for any Loss or causes of action arising in relation to this Agreement, including for negligence, is limited to the amount that is the lesser of:

(a)           the amount you have paid in Fees; and

(b)           the amount by which our insurance pursuant to clause 16 responds to the Loss.

13.2        We will be liable to you only for that proportion of the total Loss that we have caused or to which we have contributed and we will not be liable for any Consequential Loss.

13.3        We will not be liable for any Loss, or failure to provide the Software, ICT, Managed Services and/or Business Consulting Services, which is caused by an Unexpected Delay or which arises as a result of us relying on any false, misleading or incomplete Information provided by you, your Representatives, or any other party.

13.4        The limit of liability set out above applies to all Addressees as a group and it is up to you to agree how the limit is allocated between you. You agree not to dispute the limit if you are unable to agree on how it will be allocated between you.

14.          Warranties and Consumer Legislation

14.1        To the extent permitted by law, we disclaim all warranties, either express or implied, in relation to the Software, ICT, Managed Services and/or Business Consulting Services and the Work other than any written warranty made in the Terms.

14.2        The rights and remedies in this Agreement are cumulative and not intended to exclude or limit any rights or remedies provided by Consumer Legislation or any other law.

14.3        To the full extent permitted by law, where the benefit of any condition, warranty or other condition is conferred upon you by any Consumer Legislation, our sole liability for breach of any such condition, warranty or other obligation, including any Consequential Loss which you may sustain or incur, shall be limited:

(a)           In relation to goods:

(i)            The replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or

(ii)           The repair of the goods or payment of the cost of having the goods repaired;

(b)           In relation to services:

(i)            The supply of the services again; or

(ii)           The payment of the cost of having the services supplied again,

and in each case we may elect the remedy at our sole discretion.

15.          Conflict of interest

We have relationships with many clients. This means that after this Agreement starts, we may identify circumstances that could cause us to have a conflict of interest. If this happens, we will evaluate the potential conflict and, depending on the circumstances, apply appropriate safeguards to manage it. For example, we may notify you of a relationship that causes us a conflict and ask for your consent to continue to provide you with the Software, ICT, Managed Services and/or Business Consulting Services. However, you acknowledge that we may need to terminate this Agreement if we are unable to resolve or manage a conflict of interest satisfactorily.

16.          Insurance

We will maintain appropriate insurance in relation to the Software, ICT, Managed Services and/or Business Consulting Services, including professional indemnity insurance in an amount of not less than $1 million during the term of this Agreement.

17.          Termination

17.1        Either of us may terminate this Agreement:

(a)           at any time by giving the other 30 days’ written notice; or

(b)           immediately if the other suffers an Insolvency Event, is unable to pay all of its debts as and when they become due and payable, suspends payment of such debts or otherwise ceases to carry on business; or

(c)           immediately if the other commits any material breach of this Agreement that is either incapable of being remedied or is not remedied within 14 days of receipt of a notice requiring the breach to be removed.

17.2        We may terminate this Agreement immediately if:

(a)           you fail to meet your obligations under this Agreement including to pay our Fees within the time specified or to provide us with adequate Information or instructions;

(b)           we are unable to resolve or manage a conflict of interest; or

(c)           there is a change of circumstances beyond our reasonable control (such as auditor independence or regulatory related developments) that prevents us from providing the Software, ICT, Managed Services and/or Business Consulting Services to you.

17.3        If this Agreement is terminated:

(a)           you agree to pay us the Fees for any work we have done and any expenses we have incurred up to the date of termination;

(b)           except as set out in this Agreement, and only where relevant, each of us will return to the other any documents or property of the other, except that we may retain one copy of all Information to allow us to satisfy our professional obligations and record keeping requirements;

(c)           the termination does not affect any accrued rights of either of us or any provision of this Agreement that continues to apply.

17.4        The provisions of this Agreement that survive its termination include those relating to clause 5, Provision of Services; clause 6, Confidentiality; clause 7, Personal Information and Privacy; clause 8, Intellectual Property; clause 9, Our Work; clause 10, Our Fees; clause 13, Our responsibility to you; clause 16, Insurance; subclause 17.3, Termination; clause 18, Dispute resolution; and clause 19, Disclosure of Tax Advice.

18.          Dispute Resolution

18.1        Each of us agrees to use reasonable endeavours to resolve any dispute that arises in connection with this Agreement by mediation before bringing a legal claim or starting legal proceedings against the other.

18.2        Nothing in this clause prevents either of us from seeking any equitable relief in relation to our rights under this Agreement.

19.          Disclosure of Tax Advice

In relation to Tax Advice and in compliance with any applicable law, it is acknowledged and agreed that nothing contained in this Agreement shall be construed as limiting or restricting your disclosure of Tax Advice. It is also understood that none of your other advisers will or have imposed any conditions of confidentiality with respect to Tax Advice. Copies of any Tax Advice provided to others is on the basis that such recipients may not rely on such Tax Advice and that we owe no duty of care or liability to them, or any other persons who subsequently receive the same. Except as set out in this clause, all other terms of this Agreement remain unamended.

20.          Relationship Between the Parties

We are engaged as an independent contractor. Neither of us is an agent or representative of or has the authority to bind the other. Neither of us will act or represent ourselves, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other. This Agreement is not intended and will not be taken to constitute a partnership, agency, employment, joint venture or fiduciary relationship between us.

21.          Entire Agreement

21.1        This Agreement is the entire agreement between us for the Software, ICT, Managed Services and/or Business Consulting Services. It supersedes all prior communications, negotiations, arrangements and agreements, either oral or written between us in relation to its subject matter.

21.2        Any changes to this Agreement must be agreed to in writing by both of us.

22.          Assignment

Neither of us may transfer, assign or novate this Agreement without the Consent of the other, which shall not be unreasonably withheld. However, we may assign this Agreement to any of our Related Entities or any successor to our business without requiring your Consent.

23.          Electronic Communication

Pursuant to sections 11 and 12 of the Electronic Transactions Act (Qld) 2001 (Qld) or any other applicable law, each of us agrees that we may receive and send information to each other electronically. You acknowledge that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and may contain viruses. Neither of us is responsible to the other for any loss suffered in connection with the use of e- mail as a form of communication between us.

24.          Severability

If any of the terms of this Agreement are not legally enforceable then that term or the relevant part of it will be either amended as appropriate to make it enforceable or ignored, but in all other respects this Agreement will have full effect.

25.          Governing Law

This Agreement is governed by the laws of the State of Queensland, Australia, and each party irrevocably submits to the jurisdiction of the courts exercising jurisdiction in that State.

26.          Your Feedback

We value your feedback. We aim to obtain, either formally or informally, a regular assessment of our performance. If you wish to make a complaint, please write to the Complaints Officer via [email protected].

27.          Software and Systems Usage

27.1        Clauses 27, 28, 29, and 30 apply to the use of our Software Systems & Services. By entering into this Agreement, you agree that you will procure each User to comply with these clauses.  In the event that a User contravenes these provisions, we may, in addition to any of our other remedies under this Agreement, immediately suspend or terminate that User’s licence to access to the Software Systems & Services.

27.2        In order to use many aspects of the Software Systems & Services, you must first complete our registration process. You must provide accurate, current and complete information when registering. (Registration Data).

27.3        You agree:

(a)           to maintain and promptly update the Registration Data, and any other information provided to us, to keep it accurate, current and complete;

(b)           that you are responsible for maintaining the security of your account and safeguarding your password(s), and

(c)           that you will be fully responsible for any activities or transactions that take place using your account(s) or password(s), even if you were not aware of them.

27.4        Subject to your ongoing compliance with these Terms, we grant to you and your Users an exclusive, non-transferable revocable right to:

(a)           access and use the Software Systems & Services and their associated documentation, solely for your own internal business purposes when arranging services offered by us; and

(b)           access and use any data or reports that we provide or make available to you as part of your access and use of the Software Systems & Services solely in conjunction with your use of the Software Systems & Services.

27.5        Your licence to access and use the Software Systems & Services will commence upon you signing this Agreement and will end one year after the termination of Software, ICT, Managed Services and/or Business Consulting Services under this Agreement.

27.6        Each User account is valid for one User only and may not be shared concurrently or otherwise by or among multiple Users. You may not harvest and/or reassign user accounts to new users within your organisation. Users of the Software Systems & Services are limited solely to your employees or their suppliers.

27.7        Modification, reverse engineering, reverse compiling, disassembly of or creation of derivative works incorporating the Platform, or any portion or component thereof is expressly prohibited. Except as expressly authorised by these Terms, you and all of your Users must not unbundle, sublicense, assign, transfer, display, distribute, rent, resell or lease the Software Systems & Services or any portion or component thereof to any third party.

27.8        You must not:

(a)           use the Software Systems & Services to store or transmit any viruses, software routines, or other code designed to permit anyone to access in an unauthorised manner, disable, erase or otherwise harm software, hardware, or data, or to perform any other harmful actions;

(b)           build a competitive product or service, or copy any features or functions of Software Systems & Services (including, without limitation, their look-and-feel);

(c)           interfere with or disrupt the integrity or performance of the Software Systems & Services;

(d)           disclose to any third party any performance information or analysis relating to the Software Systems & Services;

(e)           remove, alter or obscure any proprietary notices in or on the Software Systems & Services, including copyright notices;

(f)            use the Software Systems & Services or any product thereof for any illegal or unauthorised purpose, or in a manner which violates any laws or regulations in your jurisdiction;

(g)           modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms that make up the Services or any software, documentation, or data relating to the Software Systems & Services, except to the limited extent that applicable law prohibits such a restriction; or

(h)           cause or permit any third party to do any of the foregoing.

27.9        We may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to provide the Software Systems & Services. You agree that we are not and will not be liable or responsible for the acts or omissions of such third-party vendors or hosting partners.

28.          Software & Systems Usage – User Content and Ownership

28.1        You retain ownership rights to your Registration Data, user logs, configuration settings and any other data contributed by you in connection with the Software Systems & Services (User Content).

28.2        By making available any User Content through the Software Systems & Services, you grant to  us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to use, copy, adapt, modify, and otherwise process User Content for the purposes of providing and improving the Software Systems & Services for all  of our users.  We do not generally view or disclose your User Content. Occasionally, we may need to view User Content in connection with maintenance of the Software Systems & Services. We may also perform statistical analyses on User Content in connection with developing or optimising our Services. The use thereof is further explained in our privacy policy.

28.3        We will only disclose User Content to our Representatives that:

(a)           need to know that information in order to process it on our behalf or to provide the Software Systems & Services, and

(b)           that have agreed not to disclose it to others and with whom we have contracts in place governing our relationship.

28.4        Other than to our Representatives, as described in clause 28.3 above, we will only disclose User Content when required to do so by law, or where we believe in good faith that disclosure is reasonably necessary to protect the property or rights of us, third parties, or the public at large.

28.5        We do not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. You are solely responsible for all User Content that you make available through the Platform and for ensuring that that the data abides with the Privacy Law. We do not have any obligation to review or scan any User Content for any purpose, including without limitation for measuring quality, filtering content, or detecting the presence of malware.  We make no representations regarding the compliance of any User Content with any applicable laws or regulations.

28.6        We may create aggregations and summaries of the User Content or portions thereof and to use, disclose, and distribute such aggregations publicly to any third party in support of our business (both during the period that these Terms are in effect, and thereafter), provided that such aggregations and summaries do not directly or indirectly identify you or your User Content.

28.7        You may also disclose to us certain User Content, including without limitation feedback and comments, via our Software Systems & Services communication tools (User Proposals). By submitting User Proposals to us, you grants to us a royalty-free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide license to use, copy, adapt, modify, sublicense, transmit, distribute, display, sell, transfer, incorporate into our products or services, create derivative works from, or otherwise exploit any such User Proposals without any compensation to us.

28.8        In the event that you request that we remove your User Content, we will do so taking into account our administrative obligations under law. The retention period for data under the Privacy Law will be adhered to.

29.          Software & Systems Usage – Intellectual Property and Trademarks

29.1        We own all rights, title and interest in and to the Software Systems & Services, and all Intellectual Property Rights therein. The look and feel of the website and the Software Systems & Services, including any custom graphics, button icons, and scripts are also our property. You may not copy, imitate, or use them, in whole or in part, without our prior written consent. We reserve all rights not expressly granted to you in these Terms, and we do not grant any licenses to you or to any other party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth herein.

29.2        You acknowledge and agree that any of our names, trade marks, service marks, logos, trade dress, or other branding included on the website or as part of the Services are owned by us and may not be copied, imitated, or used (in whole or in part) without our prior written consent. All other trade marks, names, or logos referenced on the Software Systems & Services are the property of their respective owners, and the use of such third-party trade marks inure to the benefit of their respective owners.

30.          Software & Systems Usage – Service Guarantees

30.1        We will use commercially reasonable efforts to make the Software Systems & Services available 24 hours a day, 7 days a week, except for planned downtime and unforeseen circumstances.

30.2        To the extent permitted by law, we accept no liability for failure to provide access to the Software Systems & Services due to any emergency maintenance, any catastrophic system failure, any failures of your equipment or systems, or due to other acts outside our reasonable control.

30.3        In the event you discover a defect in the Software Systems & Services, you agree to provide us with sufficient detail to allow us to verify and reproduce the error.

30.4        With the use of multiple data centres, we will use commercially reasonable endeavours to minimise the risk of full server outage. Furthermore, regular backups are made to prevent data loss.

30.5        We will implement and maintain commercially and technologically appropriate technical and organisational measures to protect User Content and the Software Systems & Services against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access.

30.6        To the extent permitted by law, the Software Systems & Services are offered on an “as is” basis. We do not provide any representations or warranties as to uptime, availability, security, or any other measure. We are open to improvement suggestions but will make improvements as it deems fit.

31.          Waiver

31.1        A waiver by one of us of a breach by the other party of any term of this Agreement does not operate as a waiver of another term or a continuing breach by the other of the same or any other term of this Agreement.

32.          Reading this Agreement

In this Agreement:

(a)           headings are for convenience only and do not affect how this Agreement is interpreted;

(b)           the singular includes the plural and vice versa, and a reference to one gender includes other genders;

(c)           the word person includes an entity, a firm, a body corporate, an unincorporated association or an authority;

(d)           a reference to this Agreement or an act or instrument is to this Agreement, or that act or instrument as amended, varied, novated or replaced from time to time;

(e)           a reference to dollars or $ means Australian dollars;

(f)            an Annexure (if any) forms part of this Agreement;

(g)           another grammatical form of a defined word or expression has a corresponding meaning;

(h)           a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;

(i)            the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(j)            a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and

(k)           if there is any conflict between these Terms and any other part of this Agreement, the following order of priority will apply:

(i)            the Letter, Consulting Report, Proposal or offer;

(ii)           the Annexure (if any); and these Terms.

33.          Definitions

In this Agreement the following words have the meanings set out below:

Addressee means each person to whom the Letter, Consulting Report, Proposal or offer is addressed and includes, where relevant, any additional parties who may agree to the terms of this Agreement.

Agreement means the Letter, Consulting Report, Proposal or offer and the Terms.

Annexure means a document which is annexed or attached to the Letter, Consulting Report, Proposal or offer and identified as an annexure or attachment to it.

Audit means an audit under the Corporations Law, conducted in accordance with relevant auditing standards.

Auditor means an auditor who is appointed to conduct an Audit of you.

Confidential Information means and includes:

(a)           the terms of this Agreement and the details of the Software, ICT, Managed Services and/or Business Consulting Services;

(b)           any information or material which is proprietary to a party or acquired by either of us solely as a result of the Software, ICT, Managed Services and/or Business Consulting Services;

(c)           any Intellectual Property and methodologies and technologies that:

(i)            you use in your business, and to which we are exposed in the course of providing the Software, ICT, Managed Services and/or Business Consulting Services; or

(ii)           we use to provide the Software, ICT, Managed Services and/or Business Consulting Services;

(d)           any information designated as confidential by either of us; and

(e)           any Work we provide to you,

but excludes any information that:

(f)            is or becomes publicly available, except by a breach of this Agreement;

(g)           is disclosed to either of us by a third party provided that the recipient reasonably believes the third party is legally entitled to disclose such information;

(h)           was known to either of us before we received it from the other or is developed by either of us independently;

(i)            is disclosed with the other’s Consent; or

(j)            is required to be disclosed as contemplated by subclause 6.5.

Consent means prior written consent which may be granted at the consenting party’s discretion and which may be subject to conditions.

Consequential Loss means any loss or damage which is indirect, consequential, special, punitive, exemplary or incidental, including any loss of profit, revenue, anticipated savings or business opportunity, loss or corruption of data or systems, or damage to goodwill however caused or arising as a result of the Software, ICT, Managed Services and/or Business Consulting Services or this Agreement.

Consumer Law means the Consumer and Competition Act 2001 (Cth), and any other national, State or Territory fair trading or consumer protection legislation.

Corporations Law means the Corporations Act 2001 (Cth), the rules of the Australian Securities and Investment Commission or any equivalent legislation, statute or subordinate legislation or guidance in any relevant jurisdiction.

Fees means the fees for the Software, ICT, Managed Services and/or Business Consulting Services as stated in, or calculated in accordance with, this Agreement.

Firm means an entity that Kelpee engages to assist with the provision of Software, ICT, Managed Services and/or Business Consulting Services.

GST has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Information means any information, documents, materials, facts, instructions or Confidential Information provided to us by you or your Representatives or anyone else at your request.

Insolvency Event means and includes:

(a)           the making of an arrangement, compromise or composition with, or assignment for the benefit or, one or more creditors of a party;

(b)           the appointment of administrators, liquidators (including a provisional liquidator), receivers, a bankruptcy trustee or analogous person to, or over, all or part of a party’s business, assets or securities;

(c)           an application being made, or a resolution being proposed, which seeks to effect such an appointment other than for a solvent reconstruction; and

(d)           a party (if a corporation) being wound up (voluntarily or involuntarily) or dissolved;

(e)           the existence of a legislative presumption of insolvency in relation to a party.

Intellectual Property means all industrial and intellectual property rights throughout the world and includes rights in respect of copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), trade secrets, know-how and circuit layouts, and includes the right to register any intellectual property rights

Kelpee means Kelpee.com Pty Ltd ACN 600 275 769 and/or any Related Entity entering into the Agreement as identified in the Letter, Consulting Report, Proposal or offer.

Letter, Consulting Report, Proposal or Offer means the engagement Letter, Consulting Report, Proposal or offer between us to which these Terms are attached.

Licensed Entity means Kelpee.com Pty Ltd ACN 600 275 769 and/or any Related Entity that holds a licence or registration for systems or services.

Licensed Software, ICT, Managed Services and/or Business Consulting Services means that part of the Software, ICT, Managed Services and/or Business Consulting Services that are required to be provided by a Licensed Entity.

Loss means any losses, liabilities, claims, damages, costs or expenses (including interest where applicable and Consequential Loss), suits, injury, actions, proceedings, right of action, judgments or orders however caused or arising as a result of the Software, ICT, Managed Services and/or Business Consulting Services or this Agreement.

Personal Information has the meaning given to it in the Privacy Law.

Platform means the enterprise resource planning platform described in the Letter, Consulting Report, Proposal or Offer.

Privacy Law means the Privacy Act 1988 (Cth), and any other national, State or Territory privacy legislation.

Professional Advisers means your own professional advisers who may be advising you in relation to the Software, ICT, Managed Services and/or Business Consulting Services but excludes any investor, agent, intermediary, underwriter, syndicate participant, lender or other financial institution or anyone who may provide you with any credit enhancement or credit rating.

Purpose has the meaning given to it in the Letter, Consulting Report, Proposal or offer or our Work, or where silent on this, the purpose for which we provide our Work to you.

Related Entity has the same meaning as in the Corporations Law.

Report has the meaning given to it in the Letter, Consulting Report, Proposal or offer or where the Letter, Consulting Report, Proposal or offer does not set out a specific report, means any final form of documents, reports or deliverables we provide to you as a result of the Software, ICT, Managed Services and/or Business Consulting Services or this Agreement including those consisting of advice or opinions.

Representative means any officer, employee, consultant, agent, contractor or subcontractor of either of us, who is involved in the activities to which this Agreement relates and in the case of Kelpee and may include a partner.

Software, ICT, Managed Services and/or Business Consulting Services means the software, information and communications technology, managed services and/or business consulting services described in the Letter, Consulting Report, Proposal or Offer.

Software Systems & Services means collectively, our website, software, information and communications technology and Platform.

Tax Advice means any advice, whether written or oral, relating to tax, tax structuring or tax treatment provided by us as a result of the Software, ICT, Managed Services and/or Business Consulting Services but excludes any tax due diligence Work which we prepare as a result of the Software, ICT, Managed Services and/or Business Consulting Services.

Terms means these standard terms and conditions.

Unexpected Delay means any delay in providing the Software, ICT, Managed Services and/or Business Consulting Services that is caused or contributed to by an act or event (including the non-performance of your obligations) that is beyond our control or was not reasonably foreseeable by us at the date of this Agreement.

 

us means Kelpee.com Pty LTD, or both you and Kelpee Pty LTD, as the context requires.

User means you and any of your Representatives who create an account to use the Software Systems & Services.

we and our means Kelpee and, where applicable as the context requires, the members of Kelpee and any of their Representatives.

Work means any advice or materials including any reports, documents, advice, opinions, e-mails, notes or other deliverables, whether in draft or final form, in writing or provided orally, that we prepare either alone or in conjunction with you or provide to you as a result of this Agreement and includes any Reports but excludes our Working Papers or any source code.

Working Papers means any files or working papers created by us as our record of the Software, ICT, Managed Services and/or Business Consulting Services, in any form.

you and your means each Addressee, and where applicable as the context requires, each Addressee’s Representative.