This Agreement is made between the parties listed below
BETWEEN: LEADING AGE SERVICES AUSTRALIA QUEENSLAND INC (ABN 12768644881) of 6 Pavlions Close, Jindalle Qld 4074
collectively known as "the parties".
This Agreement sets out the contractual relationship between LASA Q and the Customer and takes precedent over all other correspondence including but not limited to the Sales Proposal, Email Correspondence and the Customer Charter.
From time to time, subject to LASA Q providing the Customer 28 days notice on the website, As LASA Q may (acting reasonably) modify this Agreement, including any referenced policies, fees and other documents. Any modified version will be effective at the time it is posted. To keep abreast of your license rights and relevant restrictions, please bookmark this Agreement and read it periodically.
By continuing to use the website, you agree to all of the modifications.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the contrary intention appears:
"Customer Materials" means all the artwork, graphics, logos, symbols, information, documents, audio, video, client list, marketing plans, drawings and any other materials including the Customer's Confidential Information; provided directly by the Customer, for use in connection with the Hosted Software, or otherwise used, or incorporated by LASA Q into anything produced by LASA Q, in providing the Configuration Services. Customer Materials does not include any information, designs, software, workflows, processes, documents or ideas introduced by LASA Q for use in a project as this Intellectual Property will remain the explicit property of LASA Q.
"Force Majeure" means a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.
"Specification" means the specifications agreed between the parties for configuring the Hosted Software and included within the Configuration Plan and Custom Functional Specification documents;
"Term" means the term of the Agreement as specified in clause 2. 1.;
(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
2. TERM OF AGREEMENT
2.1. This Agreement commences upon the Commencement Date and will continue until the expiration of the Term expressly stated by the Customer unless otherwise terminated in accordance with Clause 14.2.
3.1. LASA Q grants the Customer a non-transferable, non-exclusive license to use and access the Hosted Software during the Term.
3.2. The Customer must only access the Hosted Software through the login mechanism provided by the Hosted Software or using the Access Keys provided by LASA Q
3.8. The Hosted Software may contain or be provided with components subject to the terms and conditions of "open source" software licenses ("Open Source Software"). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including any provisions governing access to source code, modification or reverse engineering.
4.1. The Customer acknowledges that it is responsible for determining the suitability of Hosted Software for its purpose.
5. DATA STORAGE
LASA Q will use all commercial reasonable endeavours to ensure that the Customer Materials, and Customer Data as hosted by LASA Q, are protected from unauthorised access during the Term of this Agreement, the Customer acknowledges that:
(a) LASA Q is not obliged to maintain backup copies of the Customer Materials and Customer Data other than for their explicit use during disaster recovery processes during the Term of this Agreement; and
(b) LASA Q to the extent permitted by law, will not be liable (whether in contract, tort including negligence, statute or otherwise) for any unauthorised access, misuse, corruption or loss of any of the Customer Materials or Customer Data.
6. CONFIGURATION SERVICES
6.1. Configuration Services will be carried out as described in the Customer Charter provided to the Customer with all due skill and care and in a professional and competent manner.
7. CUSTOMER MATERIALS
7.2. The Customer grants a revocable, non-transferable, personal, royalty free license to LASA Q to use and reproduce the Customer Materials for the sole purpose of providing the Hosted Software, Configuration Services and Custom Functionality contemplated by this Agreement.
7.3. The Customer warrants that the use and reproduction of the Customer Materials by the parties as contemplated by this Agreement will not infringe the intellectual property rights of any third party.
8. PROTECTION OF ACCESS KEYS
8.1. The Customer is responsible for maintaining the confidentiality of the Access Keys for all access and use of the Customer's account whether or not authorised by the Customer.
9. INTELLECTUAL PROPERTY
9.1. Subject to the rights of third parties, the Customer acknowledges that LASA Q owns all intellectual property rights in the Hosted Software, and that except as expressly specified in this Agreement, the Customer has no license or rights to access or use the Hosted Software.
9.2. Except to the extent permitted by an applicable law that cannot be excluded by Agreement, the Customer is not permitted to reproduce, distribute, sub-license, transmit, give access to, reverse engineer or decompile the Hosted Software.
9.4 Subject to clause 10.3, all intellectual property rights in anything produced by LASA Q in carrying out the Configuration Services will remain the property of LASA Q in respect of those Configuration Services and the Hosted Software, including all work detailed by the Custom Functionality Specification.
9.5. The Customer grants Aspedia a revocable, royalty-free and non-exclusive license to reproduce the Customer's trademark, business name and other mark or logo which designates the Customer's business, for the purposes of indicating the Customer as a current or past client of LASA Q.
10. CONFIDENTIAL INFORMATION
10.1. Subject to clause 11.3, the parties:
(a) will not disclose to a third party or use the other party's Confidential Information, without the prior written consent of the other party; and
10.2. A party's obligations of confidence under clause 10.3 does not extend to information which:
(a) becomes public knowledge through no fault of that party;
10.3. LASA Q may:
(a) share Confidential Information on a confidential basis with IT, financial and legal service providers engaged by LASA Q on a need to know basis to the extent reasonably necessary in order for those services providers to provide services to LASA Q; and
(b) disclose that you are a customer of LASA Q for marketing and advertising purposes subject to the licence right.
11.1. The parties will promptly sign all documents and do all things necessary to give effect to the terms of this Agreement.
12. SUSPENSION AND TERMINATION
12.1. LASA Q may terminate this Agreement immediately without notice to you if the Customer is in breach of any of clauses 3.2, 3.6, 3.7, 3.8, 3.9, 8, 9, 12.2, 11 or 21.
12.2. Should LASA Q terminate your access to the Hosted Software for cause under the Agreement, you shall not be entitled to any refund for any remaining period under your account.
12.3. LASA Q may, as an alternative to termination, suspend Customer access to the Hosted Software until the relevant breach has been rectified.
13. CONSEQUENCES OF TERMINATION
13.1. Upon Termination Customer must immediately return to LASA Q, all Confidential Information and other materials owned by LASA Q (including any copies), or where such materials are stored electronically on the Customer’s equipment, erase such materials.
13.2 Early Termination of Contract
13.2.1. Customer may request the early termination of this Agreement by requesting in writing an early termination date which the Customer must provide a minimum of 90 day advanced notice to Aspedia.
13.2.3. Either LASAQ or the Customer may terminate this Agreement without any further cost or penalty, or incurring any further liability under clause 13.2.3 prior to completion of the Functional Specification Stage of the project and the Customer signing the Configuration Plan and/or Custom Functionality Specification documents. For clarity, the Customer will not incur any costs or charges other than the Stage 1 payment milestone paid (or payable) to LASA Q on Order Form execution, and LASA Q will not be required to complete the Functional Specification Stage of the project and/or hand over either the Configuration Plan and/or Custom Functionality Specification documents.
13.2.4 After completion of the Functional Specification Stage of the project the Customer commits to pay in full the Fees included in the Final Statement within 7 days of its receipt.
14.3 Copy of Website Content
14.3.1. Customer may request at any time of issuing the early termination notice, that LASA Q make available an unencrypted copy of the Customer website including Customer Materials, Customer Data, MySQL Database and the open source Drupal code base.
14.3.2. LASA Q reserves the right to remove all LASA Q intellectual property including but not limited to software source code from this copy.
14.3.3. Customer will be charged five (5) hours labour at the then standard LASA Q hourly rate for the provision of this website copy service.
14.3.4. LASA Q is not required to make this copy available to the client until payment has been received for the Final Statement.
14.3.5. On receipt of payment for the Final Statement LASA Q will make available to the Customer a link to download the customer website.
15. IMPLIED TERMS
15.1. To the extent permitted by law, all conditions or warranties, which would otherwise be implied, are hereby excluded.
16. LIMITATION OF LIABILITY
16.1. LASA Qs liability in respect of this Agreement, including any goods or services provided pursuant to this Agreement, to the extent it is not capable of being lawfully excluded as specified in this Agreement, is limited to:
(a) where the liability arises from defective goods or services provided by LASA Q or its contractors, or a failure by LASA Q to provide goods or services in accordance with this Agreement, the re-supply or rectification of the defective or non-complying goods or services; or
(b) in all other cases, the Fees paid by the Customer under this Agreement.
16.2. In no event will LASA Q be liable (whether in contract, tort including negligence, statute or otherwise) for any indirect, consequential, special or punitive damages, or for any third party claims, loss of data, loss of time, loss of profits, loss of savings, loss of contracts, loss of revenue, loss of interest or loss of goodwill, which may be suffered or incurred by the Customer arising in any way from the use of the Hosted Software or any associated good or services provided by LASA Q to this Agreement or otherwise resulting from any act or omission of LASA Q.
17.1. You shall indemnify and hold LASA Q and our licensors and suppliers, and our and their subsidiaries, affiliates, related entities, officers, directors, shareholders, agents, co-branders or other partners, employees, successors and assignees harmless from any liability, cost, expense, loss, claim or demand, including reasonable lawyers' fees, made by any third party due to or arising from
17.1.1. the Customer's use of the Hosted Software (unless the Damages have arisen as a result of a third person claiming that the Hosted Software infringes that person's intellectual property rights); a breach by you of this Agreement;
17.1.2. the Customer Materials in any way whatsoever, including any costs of liability incurred as a result of any claims, proceedings or demands made or brought against LASA Q by any client of the Customer.
18.1. In the event of any dispute arising between the parties in relation to this Agreement ("Dispute"), no party may commence any proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the Dispute in accordance with this clause.
19. FORCE MAJEURE
19.1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than payment obligations) if such delay is due to Force Majeure.
This Agreement may not be varied unless in writing and signed by both parties.
This Agreement may not be assigned by the Customer without LASA Q's prior written consent. However, in the event of a sale or transfer of the Customer's business to a third party, LASA Q will not unreasonably withhold consent provided the Customer supplies LASA Q with any information about the proposed assignee reasonably requested by LASA Q.
22.1. No right under this Agreement shall be deemed to be waived except by notice in writing signed by the party waiving the right.
Those terms of this Agreement which will survive termination, including without limitation clauses 10, 11, 16 and 17.
If any term, or part of a term, of this Agreement is determined by a court to be invalid, unlawful or unenforceable, the Agreement shall remain in full force apart from such term or part, which shall be deemed deleted.
25.1. Notices under this Agreement may be delivered by hand, by mail, by facsimile, or by email to:
25.1.1. Customer using the contact details provided in the Order Form or using such other contact details as notified to LASA Q in accordance with this clause from time to time.
25.1.2. LASA Q at
Office Address: 6 Pavilions Close, Jindalee Qld 4074
25.2. Notices will be deemed to be given:
25.2.1. in the case of hand delivery upon receipt by an officer or authorised representative of the receiving party;
26. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations, Agreements, statement and understandings, either verbal or in writing.
This Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all which taken together with constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged (which may include a facsimile copy of the Agreement in counterparts).
This Agreement shall be governed by and construed in accordance with the laws of Queensland and the parties agree, subject to this Agreement that the Courts of that State or Territory shall have jurisdiction to entertain any action in respect of, or arising out of, this Agreement.
29.1 LASA Q warrants the Hosted Software for the Term of this Agreement will comply with the Specification except as detailed in Clause 30. If you identify a problem where the software is not functional as documented in your original Configuration Plan or Custom Functionality Specification we will resolve the issue absolutely free of charge regardless of the time it takes us to complete the repair.
29.2 This warranty excludes errors related to external software products that impact the site and Unsupported Browser Software as they are outside the direct control of LASA Q.
29.5 LASA Q warrants that:
(a) it will perform all Services described under this Agreement using appropriately qualified personnel;
Last update to Terms and Conditions - September 30, 2014