Terms of ServiceEffective: 1 January 2023
INVOLVE is a volunteer management system, owned and operated by Volunteering WA.
By using INVOLVE, you agree to abide by the following Terms of Service.
Agreement Definitions and Interpretation
Acceptable Use Policy has the meaning given in clause 4.2.
Agreement means this Agreement and any document or agreement that amends, supplements, replaces or novates this Agreement
Authorised Users means, for each Cloud Service, such persons authorised to use that Service, as further described in the Registration Form.
Business Day means a day (other than Saturday, Sunday or public holiday) on which banks are open for general banking business in Western Australia, Australia.
Cloud Service means the 'software as a service' described in any signed Registration Forms (each a Cloud Service), made available to You and the Authorised Users through your provided Internet or other network.
Commencement Date means the date identified as such in a Registration Form.
Confidential Information means information (in any form) that relates to the business assets or affairs of the discloser and which is either:
- made available by or on behalf of the discloser to the recipient during or in connection with the negotiation or performance of this Agreement;
- information concerning the existence and terms of this Agreement (including the Fees and the scope of Services);
- expressly stated to be or marked confidential;
- by its nature confidential; or
- known to be, or ought to be known to, confidential by the recipient.
- Confidential Information does not include information which is:
- in the public domain, other than due to a breach of confidentiality; or
- lawfully obtained by the recipient from a different source in circumstances which do not impose a duty of confidence.
Customer Data means all data provided by or on behalf of You or Your Authorised Users to INVOLVE (including through use of the Services) under this Agreement and includes User Profile Information.
Customer Material means Customer Data and other Materials provided by or on behalf of You or Your Authorised Users to INVOLVE (including through use of the Services) under this Agreement.
Defect means a defect, error, omission, failure, shrinkage, subsidence, irregularity or other aspect in or of the Services or a Deliverable, in each case, which does not comply in a material respect with this Agreement, except to the extent caused by fair wear and tear.
Deliverable means any reports, documentation or other Materials to be generated, processed or supplied by or on behalf of INVOLVE in connection with this Agreement, which is provided to You or Your Authorised Users in connection with the Services, including through the use of the Cloud Services.
Developed Material means any Material developed by or provided by or on behalf of INVOLVE in connection with this Agreement, which is provided to you or your Authorised Users in the course of providing the Services, including any Deliverables.
Dispute means any dispute or difference between You and INVOLVE arising out of, relating to or in connection with this Agreement, including any dispute or difference as to the formation, validity, existence or termination of this Agreement.
Documentation means all documentation in any medium which INVOLVE is required to prepare, produce or recommend (including any produced by INVOLVE's Personnel) as specified in any Registration Form and the operating manuals, user guides and any other documentation which INVOLVE generally makes available to its customers in connection with the Services.
Extended Term has the meaning given in clause 3.2.
Fees means the fees payable by You to INVOLVE pursuant to this Agreement as specified in a Registration Form, inclusive of GST. If no fee is specified for a particular service, the Fees are INVOLVE's then-current standard rates for that service.
Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in Australia or New Zealand.
GST means a goods and services tax or similar value added tax levied or imposed in Australia under the GST Law.
GST Law means the same as "GST law" means in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Term means the period identified as such when an organisation signs up to use INVOLVE.
Intellectual Property Rights means the rights of a creator or an owner relating to copyright, trademarks, designs, patents, circuit layouts, plant varieties, inventions and Confidential Information, and other results of intellectual activity whether or not in material form, and any application or right to apply for registration of any of these rights, but excluding Moral Rights.
Loss includes any loss, damage, liability, cost or expense (including any legal cost and expense on a full indemnity basis) however it arises and whether it is present or future, fixed or unascertained, actual or contingent, direct or indirect.
Material means material in whatever form including documents, reports, products, equipment, information, data and software.
Moral Rights means rights of integrity of authorship, rights of attribution or authorship, rights not to have authorship falsely attributed, and rights of a similar nature conferred by statute in Australia that may now exist or that may come to exist in relation to the work.
INVOLVE means the volunteer management system, owned and operated by Volunteering WA.
INVOLVE Data means the data collected, used, amended, transformed or generated by or on behalf of INVOLVE in connection with the Services but excludes Customer Data.
INVOLVE Material means the INVOLVE Data, the Cloud Services, the Software, and all software, tools, documentation, reports, diagrams, data procedures, plans and other Materials, irrespective of media or form, used by INVOLVE in performing the Services (excluding any Customer Material or Developed Material).
Party means either You or INVOLVE as the context dictates. "Parties" means both You and INVOLVE.
Permitted Purpose has the meaning given in clause 4.1(a).
Personal Information has the meaning as defined in any applicable Privacy Law.
Personnel means, in relation to a Party, any employees, secondees, agents, principals, contractors (excluding the other Party) and subcontractor of that Party.
Privacy Laws means the Privacy Act 1988 (Cth) and any other legislation imposing an obligation in relation to the collection, use, disclosure, storage or transmission of personal information (including without limitation health information), including any codes, principles or guidelines contained in or arising out of such legislation.
Senior Management Representative of a Party means the person specified in the Registration Form, or if no such person is specified, that Party's chief executive officer or person holding an equivalent position.
Service Levels means the service level targets for INVOLVE's performance of the Services, as relevant to a Cloud Service.
Registration Form has meaning given in clause 1.2.
Services means the Cloud Services and any other services to be provided by INVOLVE to You from time to time in accordance with this Agreement, including the "support services" described at clause 4 and the Registration Form.
Software means all software used by or on behalf of INVOLVE to deliver the features and functionality of the Cloud Services, including any update, upgrade or new release relating to that software. "Software" includes all application software for the Cloud Services and all system and server software used to provide the Cloud Services.
Term has the meaning given in clause 2.1.
- profile information about an individual, including name, date of birth, contact information, profile photo, and user account information such as user name, password and other login credentials; and
- information about an individual's suitability for working with vulnerable people and children,
but excludes information related to the work (including volunteer work) performed by the individual for you or your clients.
You or Your means the Party specified as the "Customer" in the Registration Form.
Rules for interpreting this document
- Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply.
- This document is not to be interpreted against the interests of a Party merely because that Party proposed this document or some provision in it or because that Party relies on a provision of this document to protect itself.
- A reference to:
- a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
- a document (including this document) or Agreement, or a provision of a document (including this document) or Agreement, is to that document, Agreement or provision as amended, supplemented, replaced or novated;
- a Party to this document or to any other document or Agreement includes a successor in title, permitted substitute or a permitted assign of that Party;
- a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and
- anything (including a right, obligation or concept) includes each part of it.
- A singular word includes the plural, and vice versa.
- If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
- If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
- A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
- The expression this document includes the agreement, arrangement, understanding or transaction recorded in this document.
- Terms defined in the GST Law have the same meaning in this Agreement unless the context otherwise requires.
Non Business DaysIf the day on or by which a person must do something under this document is not a Business Day:
- if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and
- in any other case, the person must do it on or by the previous Business Day.
Use of the Site is at Your Risk
- You use the Site at your risk. You must evaluate, and bear all risks associated with, the use of any Content, including reliance on the accuracy, completeness or usefulness of any Content. You should seek your own independent advice with respect to any Content.
- We endeavour to provide a convenient and functional Site, but we do not guarantee that the Content will be error free or that the Site or the server that operates it are free of viruses or other harmful components.
- If Your use of the Site results in the need for servicing or replacing property, material, equipment or data, You agree that we will not be responsible for such costs.
- Without limiting the above provisions, You use the Site at your risk and everything on the Site is provided to You "as is" and "as available" without warranty or condition of any kind, either expressed or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. To the extent permitted by law, we expressly disclaim and exclude any representation or warranty whether express or implied under or in relation to Your use of the Site. Where such a condition cannot be excluded then, to the extent permitted by law, our liability is limited, at our option, to re-supply of the good or service to which the condition relates or the payment of the cost of such a re-supply.
- These online service terms (Agreement) apply to any use of theINVOLVE services as part of a trial, paid subscription or for free.
- By accepting this Agreement, by (1) clicking a box indicating acceptance, (2) executing a registration, or (3) using free services, You agree to the terms of this Agreement. If this Agreement is accepted on behalf of the Customer by a person purporting to have the authority of the Customer to do so, VWA is entitled to assume the currency and validity of such authority and the Customer shall be and remain liable to VWA under the terms of this Agreement, including for the payment of all applicable fees and charges unless and until the Customer provides written notice to VWA in accordance with clause 29 of this Agreement of its intention to terminate the Agreement after the expiry of 30 days from the date of such notice.
- INVOLVE has agreed to provide, and You have agreed to use and pay for, INVOLVE's Services, subject to the terms and conditions of this Agreement and the applicable registration process.
- The Site enables organisations to create and manage volunteer Programs, and to manage their volunteers. You will be required to register with us in order to create and manage volunteer Programs.
- When You register:
- You must complete a Registration Form
- You must provide accurate, complete and updated registration information;
- You must safeguard any user name and password which is provided to You. VWA will not be responsible for any data breaches occasioned by Your failure to implement or use properly safeguards;
- You authorise us to assume that any person using the Site with your user name and password is either you or is authorised to act for you; and
- subject to clause 22 of this Agreement You may cancel such registration at any time by notifying us.
- You acknowledge and agree that we are under no obligation to accept any application for registration by You or any other person, including without limitation if You fail to meet our registration criteria or for any other reason.
- We may cancel Your registration if You fail to meet our registration criteria as amended from time to time, or if we reasonably believe that You have violated any Applicable Laws, acted inconsistently with the letter or spirit of this agreement, or have violated our rights or those of another party.
Order of PrecedenceTo the extent of any inconsistency between parts of this Agreement, the following order of precedence will apply:
- This Agreement;
- A completed Registration;
- Service-specific terms and conditions incorporated by reference in, or attached to, a completed registration; and
- other documents incorporated by reference in, or attached to, a registration.
TermThis Agreement commences on the date of registration and will continue until the later of:
- the expiry of the Initial Term specified on registration; and
- the expiry of the Extended Term (if applicable),
(Term) unless terminated earlier in accordance with clause 22.
Extension of Term
- At the end of the Initial Term or Extended Term (as applicable), the Term will be extended for further successive periods of 1 year (Extended Term) unless either You orINVOLVE provides notice in writing to other Party that it does not wish to extend the Term.
- The notice in subclause (a) must be provided at least 90 Business Days before the expiry of the then-current Term.
Provision of Cloud Services
Access to Cloud Services
- INVOLVE permits You to access and use, and to allow each Authorised User to access and use, the Cloud Services during the Term:
- for any of Your internal business purposes; and
- to allow Authorised Users to access and use the functionality and benefits of the Cloud Services (the Permitted Purposes).
- INVOLVE will use reasonable efforts to make the Cloud Services available for Your use during the Term, but does not guarantee that access to the Cloud Services will be continuous or fault-free.
Acceptable Use Policy
- You must not provide access to the Cloud Services to any person who is not an Authorised User.
- You agree, and undertake that the Authorised Users agree, to use the Cloud Services:
- only for the Permitted Purposes; and
- in accordance with the Acceptable Use Policy set out at clause 4.3, which INVOLVE may amend from time to time by notice in writing.
- You must ensure that all Authorised Users are made aware of, and comply at all times with, the Acceptable Use Policy.
Acceptable Use PolicyYou must ensure that both you and your Authorised Users:
- comply with all applicable law in connection with the use of the Cloud Services and any Deliverables;
- maintain the confidentiality of INVOLVE's Confidential Information;
- do not use the Cloud Services for illegal purposes or otherwise display, transmit or make available material using the Cloud Services that is pornographic, obscene or indecent, or is infringing, threatening, harassing, libellous, racially or ethnically objectionable, unlawful, harmful to children, invasive of another's privacy or violates a third party's privacy rights; and
- have, and will continue to maintain, all rights and licences to provide the Customer Materials and to ensure that the Customer Materials do not infringe a third party's rights (including Intellectual Property Rights, Moral Rights and the rights of an individual under Privacy Law),
(together, the Acceptable Use Policy).
Changes to Authorised Users
- You may increase or decrease the number of Authorised Users for each Cloud Service at any time, by making a request to INVOLVE in the form and format notified to You by INVOLVE from time to time.
- If You increase the number of Authorised Users in accordance with subclause (a), INVOLVE may require You to pay additional Fees.
- Unless otherwise stated, You may at any time during the Term substitute or transfer any subscription or login credentials allocated to an individual Authorised User to another new or existing Authorised User by notice to INVOLVE in the form and format as notified to You by INVOLVE from time to time.
- You will not be required to pay any penalty or additional fee for the substitution or transfer of an Authorised User in accordance with subclause (c).
- If You want to disclose or transfer any subscription or login credentials allocated to an individual Authorised User to a person or entity outside of Your organisation in accordance with subclause (c), You must first obtain INVOLVE's prior written consent.
Changes to Cloud Services
INVOLVE may at its absolute discretion provide updates to the Cloud Services from time to time, at such times as INVOLVE considers appropriate. If it is possible that providing updates to the Cloud Services will interfere with the normal operation of the Cloud Services, INVOLVE will use reasonable endeavours to notify You in advance of the timing for the updates.
Service Interruption Definition
Service Interruption means any time during which an Authorised User cannot access a Cloud Service, but does not include any time during which maintenance is being performed on the Cloud Services and its underlying systems.
- INVOLVE must maintain a support desk that is available to You during any support hours specified in your registration to enable You to report Service Interruptions and Defects to INVOLVE and seek answers to technical questions relating to the Cloud Services..
- INVOLVE must ensure that at all times the support desk is staffed with a reasonable number of INVOLVE's Personnel who are adequately trained to respond to technical questions relating to the Cloud Services.
- INVOLVE must respond to all questions and requests made to the support desk and resolve all technical questions relating to the Cloud Services as soon as practicable.
- INVOLVE will use commercially reasonable endeavours to monitor the Cloud Services 24 hours a day, 7 days a week for Service Interruptions.
- If a Service Interruption occurs INVOLVE must report the Service Interruption to You as soon as reasonably practicable and use reasonable endeavours to respond to, restore and resolve the Service Interruption as soon as reasonably practicable.
- If You report a Defect, then INVOLVE must use reasonable endeavours to rectify the Defect (including by providing workarounds and fixes) as soon as reasonably practicable.
- You acknowledge that maintenance will be performed on the Cloud Services and its underlying systems from time to time and agree to the performance of such maintenance.
- If it is possible that the maintenance in subclause (a) will interfere with the normal operation of the Cloud Services, INVOLVE must provide you with reasonable notice in advance of the timing for the maintenance.
Provision of Documentation
INVOLVE will provide Documentation as set out in any agreed registration and to the extent otherwise required under this Agreement, in the form which INVOLVE generally makes available to its customers.
Revision of Documentation
INVOLVE may amend the Documentation as it considers reasonably necessary from time to time and make that Documentation available to You.
If specified at registration, INVOLVE must provide training services to You and Your nominees at the locations and during the times specified in Your subscription agreement.
- use reasonable endeavours to provide each Cloud Service in accordance with the Service Levels;
- measure, monitor and record failures to meet the applicable Service Levels; and
- unless otherwise specified, use commercially reasonable efforts within a reasonable time to identify and address the root cause of any issues giving rise to a failure to meet a Service Level.
Payment of the Fees
You must pay the Fees at the rate and in accordance with the terms of payment specified in a Registration Form (as applicable).
- Except as specified otherwise in this Agreement, the Fees are exclusive of taxes, duties and fees imposed or levied in Australia or overseas in connection with this Agreement.
- Without limiting subclause (a), you are liable for any taxes, duties or fees imposed subsequent to the date of this Agreement.
Payment of GST
- Unless otherwise expressly stated, all amounts payable under or in connection with this Agreement are stated exclusive of GST.
- If GST is or will be payable on a supply made under or in connection with this Agreement, to the extent that the consideration otherwise provided for that supply under this Agreement is not stated to include an amount in respect of GST on the supply:
- the consideration otherwise provided for that supply under this Agreement is increased by the amount of that GST; and
- the recipient must make payment of the increase as and when the consideration otherwise provided for, or relevant part of it, must be paid or provided or, if the consideration has already been paid or provided, within seven days of receiving a written demand from the supplier.
Later adjustment to price or GSTIf the amount of GST on a supply is or should be different from the amount in respect of GST already recovered by the supplier, as appropriate, the supplier:
- may recover from the recipient the amount by which the amount of GST on the supply exceeds the amount already recovered by giving seven days written notice; or
- must refund to the recipient the amount by which the amount already recovered exceeds the amount of GST on the supply; and
- must issue an adjustment note or tax invoice reflecting the adjustment event in relation to the supply to the recipient within 28 days of the adjustment event except where the recipient is required to issue an adjustment note or tax invoice in relation to the supply.
Reimbursements / Indemnities
Costs actually or estimated to be incurred or revenue actually or estimated to be earned or lost by a Party that is required to be reimbursed or indemnified by the other Party or used as the basis for calculation of consideration for a supply under this Agreement must exclude the amount of GST referrable to the cost to the extent to which an entitlement arises or would arise to claim an input tax credit and in relation to revenue must exclude any amount in respect of GST referable to the revenue.
- Neither You nor INVOLVE can use Confidential Information of the other Party unless it is necessary to exercise its rights or perform its obligations under this Agreement.
- Neither You nor INVOLVE can disclose Confidential Information of the other Party in any circumstance without prior consent from the owner of the Confidential Information unless:
- the Confidential Information is disclosed to the Party's Personnel solely to exercise the Party's rights or to comply with the Party's obligations under this Agreement, and prior to disclosure, the Party informs any recipient Party Personnel of the Party's obligations in relation to the Confidential Information under this Agreement and obtains an undertaking from the recipient Party Personnel to comply with those obligations; or
- the disclosure is authorised or required to be disclosed by any Government Agency, stock exchange or other regulatory body or law.
- If You or INVOLVE intends on making a disclosure under clause 12(b)(ii), the Party must:
- to the extent possible, notify the other Party immediately of the intended disclosure;
- consult with and follow any reasonable directions from the other Party to minimise disclosure;
- use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential; and
- if disclosure cannot be avoided, only disclose Confidential Information to the extent necessary to comply.
- On termination or expiry of this Agreement, and subject to any term of this Agreement to the contrary, a Party must if requested in writing by the other Party return, erase or destroy all documents, materials or intangible records containing, recording or referring in any way to the Confidential Information of the requesting Party which are in the possession, power or control of the Party or of any person whom the Party has given access
- the subject matter or provisions of this Agreement;
- any of the Services; or
- a Deliverable.
Responsibility for obtaining consent and giving notice to individuals
- You are responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information you provide to INVOLVE in connection with this Agreement so as to ensure that INVOLVE's dealings with that information pursuant to this Agreement comply withINVOLVE's obligations under any Privacy Laws.
- You acknowledge and agree that INVOLVE may obtain consent from, and provide notices to, Authorised Users and prospective Authorised Users regarding the collection, use and disclosure of User Profile Information by INVOLVE for the purposes of allowing an Authorised User or prospective Authorised User to use INVOLVE's services in connection with other INVOLVE customers.
INVOLVE compliance with Privacy LawsSubject to clause 14.1, INVOLVE will ensure that it deals with Personal Information acquired from You in connection with this Agreement in accordance with the Privacy Laws, in the same way, and to the same extent, as if the act done, or practice engaged in had been directly done or engaged in by You.
Customer Data is considered Customer Material. INVOLVE is permitted to use and otherwise exploit the Customer Material in accordance with clause 16.2.
Safeguarding Customer DataINVOLVE will use practices, procedures, methods, standards, skill and care which would reasonably be expected to be used by an organisation experienced in providing the same or similar Services to ensure that Customer Data that is within INVOLVE's possession or control is protected at all times from access, modification, deletion, copying, use or damage by any unauthorised person or entity.
- You acknowledge that:
- the Services, Cloud Services, Software and Documentation are Confidential Information of INVOLVE and its licensors; and
- all INVOLVE Material, including the Services, Cloud Services, Software and Documentation, remains the property of INVOLVE (or its licensor).
- Nothing in this document, including the licence and access rights provided under this Agreement, assigns any Intellectual Property Rights in INVOLVE Material to You.
- INVOLVE grants You a non exclusive, royalty-free, non-transferable personal licence to use the INVOLVE Material during the Term for the Permitted Purposes in accordance with this Agreement.
- You must not:
- use the INVOLVE Material for any purpose other than the performance of your obligations under this Agreement;
- sell, lease, transfer, assign, sub-license, license or otherwise part with possession of the INVOLVE Material, or any part of it, except as expressly permitted in this Agreement;
- create or allow to be created or subsist any lien, charge, mortgage or encumbrance over the INVOLVE Material or any part of it;
- attempt to disassemble, decompile or otherwise reverse engineer any software comprised in the INVOLVE Material, except as permitted by the Copyright Act 1968 (Cth);
- alter, customise, modify or create derivative works of any software comprised in the INVOLVE Material; or
- remove or alter any proprietary notice on any software comprised in the INVOLVE Material.
- INVOLVE acknowledges that all Customer Material remains your property.
- Nothing in this document assigns any Intellectual Property Rights in Customer Material to INVOLVE.
- You grant INVOLVE a worldwide, non-exclusive, royalty-free, transferable, perpetual licence (with the right to assign and sublicense to its related bodies corporate (as defined in the Corporations Act 2001 (Cth)), third party contractors and other service providers) to:
- retain, use, modify, adapt and reproduce the Customer Material as required and for such time as is necessary for the performance of its obligations under this Agreement and to the limited extent required to enable INVOLVE to comply with its record keeping obligations under applicable law;
- retain and use any aggregated or de-identified form of the Customer Data for its internal business purposes during and after the Term; and
- retain, use, modify, adapt and reproduce User Profile Information for the purpose of allowing Authorised Users and prospective Authorised Users to use INVOLVE's services in connection with other INVOLVE customers.
- INVOLVE will own and retain all Developed Material immediately on and from its creation. The Developed Material will be treated as INVOLVE Material.
- Clause 16.3(a) will not apply to any Developed Material to the extent that:
- You and INVOLVE agree in writing that it will be owned and retained by You; or
- it is a modification or enhancement to Customer Material,
- Where INVOLVE owns any Developed Material, You unconditionally assign, and must procure that all Your Personnel unconditionally assign, to INVOLVE:
- all rights and all Intellectual Property Rights (other than copyright) in and to all Developed Material without the need for further assurance; and
- all copyright in the Developed Material, as an assignment of future property under section 197 of the Copyright Act 1968 (Cth) and in equity.
- Where any Developed Material vests in You in accordance with clause 15.3(b), INVOLVE unconditionally assigns, and must procure that all INVOLVE's Personnel unconditionally assign, to You:
- all rights and all Intellectual Property Rights (other than copyright) in and to that Developed Material without the need for further assurance; and
- all copyright in that Developed Material, as an assignment of future property under section 197 of the Copyright Act 1968 (Cth) and in equity.
in which case You and INVOLVE agree that the Developed Material will vest in You immediately on and from its creation. The Developed Material will be treated as Customer Material.
You must not do anything that is, or is likely to be, an infringement of, or otherwise inconsistent with, any Moral Rights in connection with any Developed Material.
You or INVOLVE must, if required by the other Party, do all further things and execute all further documents necessary to assign all rights and all Intellectual Property Rights as necessary to give effect to this clause 16.
- Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.
- You and INVOLVE must each use reasonable endeavours to minimise the risk that Harmful Code, or similar programming effects, are coded or introduced into the Services or the other Party's systems or other systems on which the Customer Material is stored, as a direct result of:
- the provision of any Services or the performance of this Agreement by that Party; or
- any wrongful or negligent act or omission of that Party or its Personnel.
Representations and Warranties
INVOLVE WarrantiesINVOLVE represents and warrants that:
- it will perform its obligations under this Agreement in a good, proper and workmanlike manner;
- both it and its employees have the skill and expertise to carry out all of INVOLVE"s obligations under this Agreement; and
- it has, and will continue to maintain, all rights (including Intellectual Property Rights) and licences necessary to perform its obligations and provide the Services under this Agreement.
Exclusions from INVOLVE WarrantiesINVOLVE is not liable under clause 18.1 to the extent that any breach of a warranty is caused, or contributed to, by:
- any use of the Services or a Deliverable by You or Your Personnel which is contrary to this Agreement or any relevant Documentation;
- any modification or attempted modification of the Services or a Deliverable by You or Your Personnel that is not authorised by INVOLVE or permitted under this Agreement or any relevant Documentation;
- any combination of the relevant Services or Deliverable with other software or equipment by You or Your Personnel that has not been approved by INVOLVE; or
- any failure or malfunction of any equipment or software not provided by or on behalf of INVOLVE.
Exclusions of Implied Conditions and Warranties
- To the full extent permitted by law, and except as otherwise specified in this Agreement, all conditions and warranties which would otherwise be implied in this Agreement (by statute, general law, customs or otherwise) are expressly excluded.
- Without limiting subclause (a), INVOLVE does not warrant that the operation of the services will be secure, uninterrupted or error free.
- To the extent any conditions or warranties cannot be excluded by subclause (a), INVOLVE's liability is limited to:
- in the case of goods:
- the replacement of the goods or the supply of equivalent goods (or the payment of the cost of the replacement or supply); or
- the repair of the goods (or the payment of the cost of the repair); and
- in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.
- in the case of goods:
No reliance upon representations
You warrant that you have not relied on any representation made by INVOLVE which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by INVOLVE.
Liability and Indemnity
Excluded LossNotwithstanding anything else in this Agreement, You and INVOLVEwill not have any liability to the other Party arising out of or in connection with this Agreement (however arising, including for negligence or under any indemnity) for any:
- loss of profit, revenue or anticipated savings, business interruption, loss of chance or business opportunity, loss of or damage to goodwill or reputation, or claims by a third party for liquidated sums; or
- indirect or consequential Loss (even if you have advisedINVOLVE of their possibility) or any punitive or exemplary damages,
incurred in connection with, or as a result of entering into, this Agreement or its performance.
- Subject to clause 19.1, and to the maximum extent permitted by law, the liability of each Party to the other for any claim in connection with this Agreement is limited to the total amount of Fees paid by you to INVOLVE under the relevant Registration Form during the 12 months preceding the event giving rise to the relevant claim under this Agreement.
- This clause 19.2 does not apply to your indemnification obligations in clause 19.3 below.
Your Indemnity ObligationsYou must indemnify INVOLVE and its officers, employees and agents (Indemnified Parties) and must pay on demand the amount of all Loss (including Loss arising from third party claims) incurred by the Indemnified Parties in connection with:
- any failure by You to pay the Fees;
- any breach by You of Your obligations under clause 4.2 (Acceptable Use Policy), clause 12 (Confidentiality), clause 14 (Privacy) or the restrictions in clause 16 (Intellectual Property); or
- any wilful, unlawful or negligent act or omission of You or any of Your officers, employees, agents or contractors.
INVOLVE's right to suspend the Services
- INVOLVE reserves the right to suspend the Services:
- by giving you at least 5 Business Days' notice if You breach this Agreement by non-payment of the Fees; or
- immediately by giving you notice if You or an Authorised User fails to comply with the Acceptable Use Policy.
- Suspension does not affect the Fees or Your liability to pay them.
- The Fees will not be reduced, and You must continue to pay the Fees, during the period the Services are suspended.
Reducing the Scope of the Cloud Services
Removing a Cloud Service/ Downgrading
- You and INVOLVE may, for convenience, partially reduce the scope of the Services by downgrading to a lower paid subscription from this Agreement, by giving 90 days written notice to the other Party.
- In the event that INVOLVE or You partially reduce or downgrade the scope of the Services in accordance with paragraph (a):
- INVOLVE will stop providing the Cloud Service covered by the reduction in scope but continue to provide all other Services; and
- the Fees will be reduced by the amount of Fees specified in the Payment Schedule for the removed Cloud Service.
Termination for convenience
Except in the circumstances referred to in clause 2.1(b) of this Agreement, either Party may terminate this Agreement for convenience by giving 90 days written notice to the other Party.
Termination for breach or insolvency
- You or INVOLVE (Non-Defaulting Party) may terminate this Agreement as a whole immediately by notice in writing to the other Party (the Defaulting Party) if:
- the Defaulting Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
- the Defaulting Party is in breach of any term of this Agreement and either:
- the Non-Defaulting Party reasonably considers that the breach cannot be remedied; or
- the Non-Defaulting Party notifies the Defaulting Party that it requires the breach to be remedied and the breach is not remedied within 20 Business Days of that notice.
- INVOLVE may terminate this Agreement as a whole immediately by notice in writing to You if:
- You breach a payment obligation to INVOLVE;
- INVOLVE notifies You that it requires the breach to be remedied; and
- the breach is not remedied within 5 Business Days of the notice in subclause (b)(ii).
- You and INVOLVE acknowledge that each termination triggering event in subclauses (a) and (b) is deemed to be a breach of an essential term of this Agreement.
Obligations on termination of this AgreementOn termination or expiry of this Agreement for whatever reason:
- any unpaid invoices issued to You for Fees under this Agreement are considered immediately due and payable as at the termination date;
- You must pay INVOLVE that part of the Fees which has accrued at the date of termination;
- INVOLVE is discharged from any further obligations under this Agreement;
- INVOLVE may:
- retain any moneys paid;
- charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
- pursue any additional or alternative remedies provided by law; and
- You are not entitled to any refund or repayment of the Fees, for any reason.
- Neither Party will be liable for any delay or failure to perform its obligations (except for an obligation to pay the Fees) if the delay is directly or indirectly due to any occurrence or omission that is beyond the reasonable control of that Party, including forces of nature, industrial action and action or inaction by a Government Agency.
- If a delay or failure of a Party to perform its obligations is caused or anticipated due to an event described by subclause (a), the performance of that Party's obligations will be suspended for the duration of the event.
INVOLVE may subcontract the performance of this Agreement or any part of this Agreement.
- You and INVOLVE may only assign, encumber, declare a trust over or otherwise deal with its rights under this Agreement with the written consent of the other Party.
- INVOLVE may consent to the assignment of this Agreement subject to such conditions as it in its absolute discretion chooses to impose.
- Subject to paragraph (a), a Party may assign, encumber, declare a trust over or otherwise deal with its rights under this Agreement without the consent of any other Party and may disclose to any potential holder of the right, or an interest in the right, any information relating to this Agreement or any Party to it.
- Subject to clause 26(b), the provisions of this Agreement cannot be varied, except by Agreement in writing signed by You and INVOLVE.
- You acknowledge and agree that:
- the Acceptable Use Policy may be varied by INVOLVE at any time in accordance with clause 4.2(b)(ii); and
- any such variation of the Acceptable Use Policy is effective from the date of INVOLVE's notice and does not need to be signed by You and INVOLVE.
- You and INVOLVE acknowledge and agree that INVOLVE is entitled to seek a variation in response to an actual or prospective change in an existing law or the introduction of a new law (other than a change to common law or equity) that would materially affect INVOLVE's cost of performing, or ability to perform, its obligations under this Agreement.
- If a Dispute arises, then the following process must be followed before either You or INVOLVE commences legal proceedings:
- the Party claiming that the Dispute has arisen must refer the Dispute to the Senior Management Representatives for resolution by giving notice to the other Party;
- within 5 Business Days of the Party giving the notice in subclause (a)(i), the Senior Management Representatives must meet at least once to attempt to resolve the Dispute;
- if the Senior Management Representatives do not resolve the dispute within the 5 Business Days in subclause (a)(ii), either Party may refer the Dispute to mediation for resolution by notice to the other Party; and
- within 20 Business Days of the Party giving the notice in subclause (a)(iii) or such further period as the Parties may agree in writing, the Parties must attempt to resolve the Dispute in accordance with the Resolution Institute Mediation Rules, as published by the Resolution Institute (ACN 008 651 232 or its successor) and current at the time of the mediation.
- If the Dispute is not resolved following the process in subclause (a), then You or INVOLVE may commence legal proceedings to resolve the Dispute.
- Each Party warrants that their Senior Management Representative has full authority to resolve any Dispute.
- Nothing in this clause 27 will prevent You or INVOLVE from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
Relationship of the Parties
- each are independent contractors and are not partners, joint venturers, employee and employer or principal and agent;
- a Party does not have the authority to bind the other Party by contract or otherwise and must not hold itself out as having authority to bind the other Party to any contract or otherwise; and
- any employee or contractor of a Party is, for the purposes of this Agreement, solely an employee or contractor of that Party and will not be considered an employee or contractor of the other Party.
- A notice, consent or other communication under this Agreement is only effective if it is in writing, signed and either:
- left at the addressee's address; or
- sent to the addressee's address by mail, or email,
as specified at registration or as updated by the person notifying the sender.
- A notice, consent or other communication that complies with this clause is regarded as given and received:
- if it is delivered, when it has been left at the addressee's address;
- if it is sent by mail, 3 Business Days after it is posted;
- if it is sent in electronic form (email):
- if it is transmitted by 5.00 pm (Perth time) on a Business Day – on that Business Day; or
- otherwise – on the next Business Day.
This Agreement is governed by the laws of Western Australia and any legal proceedings are subject to the non-exclusive jurisdiction of the courts of that State.
Liability for Expenses
Each Party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
Giving effect to Agreement
Each Party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other Party may reasonably require to give full effect to this Agreement.
Variation of Rights
- The exercise of a right partially or on one occasion does not prevent any further exercise of that right in accordance with the terms of this Agreement.
- The failure to exercise (or delays in exercising) a right does not amount to a choice between rights or a variation of the terms of this Agreement.
Operation of this Document
- Subject to subclause (b), this document contains the entire Agreement between the Parties about its subject matter at the time this Agreement was entered.
- Any right that INVOLVE may have under this document is in addition to, and does not replace or limit, any other right that INVOLVE may have.
- Any provision (or part of a provision) of this Agreement that is unenforceable or partly unenforceable may be severed and the remaining provisions (or parts of the provisions) will continue in force, unless this severance would materially change the intended effect of this Agreement.
Clauses 11 (GST), 12 (Confidentiality), 14 (Privacy), 16 (Intellectual Property), 18 (Representations and warranties), 19 (Liability and Indemnity), 22.3 (Obligations on termination), 25 (Assignment), 26 (Variation), 27 (Disputes), 29 (Notices), 30 (General), 31 (Definitions and Interpretation), all indemnities and all rights that accrue on or before termination or expiry, survive the expiry or termination of this Agreement.
ConsentsWhere this Agreement contemplates that INVOLVE may agree or consent to something (however it is described), INVOLVE may:
- agree or consent, or not agree or consent, in its absolute discretion; and
- agree or consent subject to conditions,
unless this Agreement expressly contemplates otherwise.
Exclusion of Contrary Legislation
Any legislation that affects Your obligations in a manner that is adverse to the interests of INVOLVE, or adversely affects the exercise by INVOLVE of a right or remedy, under or relating to this Agreement is excluded to the full extent permitted by law.
Fettering of Powers
INVOLVE acknowledges and agrees that nothing in this Agreement is intended to or will be taken to fetter or restrict Your power or discretion in relation to any powers or obligations You have under any legislative power or discretion that may apply to the subject matter of this Agreement.
Warranties as to Capacity and Acknowledgment
You and INVOLVE each warrant that they have the power to execute and perform their obligations under this Agreement and all necessary corporate and other action has been taken to authorise that execution, delivery and performance.
This Agreement may be executed by You and INVOLVE signing separate but identical copies of this Agreement.