Application Service Provider Agreement

This Agreement sets out the terms on which Smartype 88 Pty Ltd ABN 92 010 852 963 ("Smartype") will provide the Services to you.
OPERATIVE PROVISIONS
1. Definitions
In this Agreement, unless the contrary intention appears:
"Access Codes" has the meaning given in clause 3.2;
"Additional Charge" means a charge for services other than the Services in accordance with Smartype's standard rates in effect from time to time;
"Access Facilities" means facilities (including computer terminal, software, modem and telecommunications facilities) necessary for utilising the Services;
"Agreement" means this agreement to provide you with access to the Application and to provide you with Management Services in respect of the Application;
"Application" means the computer software application specified in your Order, which is to be made available by Smartype to you pursuant to this Agreement;
"Business Day" means any day from Monday to Friday, other than a bank holiday or a public holiday in the place where the recipient of a notice is located;
"Charges" means the charges for the Services specified in your Order;
"Confidential Information" means the confidential information of a Party which relates to the subject matter of this Agreement and includes:
(a) confidential information relating to the technology and design of the Application;
(b) confidential information relating to Customer Data;
(c) information relating to the personnel, policies or business strategies of Smartype; and
(d) information relating to the terms upon which the Services are provided to you pursuant to this Agreement;
"Customer Data" means data owned or supplied by you to which Smartype is provided access pursuant to this Agreement or data which may otherwise be generated, compiled, arranged or developed using the Application by either Party pursuant to this Agreement;
"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 include but are not limited to:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) strikes;
"GST" means goods and services tax as referred to in the GST Law, and any other goods and services tax, value added tax, consumption tax or other tax applying to this transaction in a similar way, whether in Australia or elsewhere, and any additional tax, penalty tax, fine, interest or other charge under the statute imposing such a tax;
"GST Law" has the meaning given in A New Tax System (Goods and Services Act) Act 1999 (Cth) ;
"Initial Term" means the period of 12 months from when Smartype notifies you of acceptance of your Order;
"Intellectual Property Rights" includes any rights in or relating to an invention, discovery or new process (whether patentable or not); patent, copyright, trade mark, design, semi-conductor or circuit layout rights; plant variety rights; trade, business or company names; rights to have Confidential Information kept confidential; other proprietary rights; and any other rights to the registration of such rights, whether created before or after the date of this Agreement;
"Management Services" means the services specified in your Order, which may include implementation, hosting, data transfer, support, training and development services as described in the Services Schedule ;
"National Privacy Principles" means the National Privacy Principles as set out in Schedule 3 of the Privacy Act 1988 (Cth) ;
"Order" means your online purchase order for the Services;
"Party" means a party to this Agreement;
"Personal Information" means information handled by Smartype pursuant to this Agreement of the type referred to in section 6 of the Privacy Act 1988 (Cth) ;
"Schedule" means a schedule to this Agreement; and
"Services" means the provision of access to the Application and the provision of the Management Services.
2. Duration of Agreement
2.1 This Agreement will commence on the date on which Smartype notifies you that it has accepted your Order, and continue for the duration of the Initial Term.
2.2 After the Initial Term, this Agreement will be automatically renewed for subsequent periods of 12 months each unless terminated by either Party in accordance with clause15.
3. Provision of Services
3.1 On acceptance of your Order:
(a) Smartype will provide you with access to the Application in the manner specified in the Access Requirements ; and
(b) the Management Services specified in your Order.
3.2 As part of the Access Requirements , Smartype will issue you with a user name and password ("Access Codes").
3.3 You must maintain the secrecy of your Access Codes and take all reasonable steps to ensure that your user name and password remain confidential.
3.4 You must not allow anyone else to use the Services using your Access Codes.
3.5 Smartype will assume that all use of the Services via your Access Codes is authorised use by you. You will be responsible for any misuse of the Services by anyone using your Access Codes.
3.6 You must notify Smartype immediately if you know or suspect that someone other than you is using your Access Codes to use the Services, or if there is some other threat to the security of the Services.
3.7 Smartype is not obliged to provide you with any services other than the Services, and if it agrees to do so at your request, then Smartype may charge you an Additional Charge for the provision of such services.
4. Service Level
4.1 Subject to the terms of this Agreement, Smartype will provide during the term of this Agreement a level of service which complies with the Service Level .
4.2 Subject to complying with clause 4.1, Smartype may exercise its sole discretion as to the configuration of its system and the nature and manner of internal technical support applied to the Services and, for the removal of doubt, may vary its procedures without prior notification to you.
4.3 Smartype will not be responsible for any failure to comply with the Service Level if such failure is due to factors beyond Smartype's reasonable control including, but not limited to:
(a) telecommunications or internet failure or fault;
(b) electrical short circuit or power failure;
(c) failure or unavailability of a third party product or service;
(d) unscheduled emergency maintenance;
(e) defective network or internet connections;
(f) defective equipment used by you to obtain the Services; or
(g) incorrect operation of your Access Facilities.
4.4 On becoming aware of any failure, fault or interruption in the Services, you must notify Smartype as soon as possible of such failure, fault or interruption. You must not attempt to rectify or permit any other person to attempt to rectify such failure, fault or interruption in the Services.
5. Customer Data
5.1 Subject to any lien arising because of unpaid Charges and subject further to any encumbrances arising outside Smartype's control, Smartype acknowledges that Customer Data remains your property.
5.2 Smartype will on reasonable notice make Customer Data and related data, documentation or records maintained on your behalf available for inspection by you or your auditors. This service may be subject to an Additional Charge.
6. Customer"s Facilities
6.1 You will be responsible for providing your own Access Facilities.
6.2 Smartype will, upon request from you, supply such information and assistance as is reasonably required by you to enable you to prepare and install your own Access Facilities.
6.3 Notwithstanding clause 6.2, Smartype accepts no responsibility for any fault or deficiency in your Access Facilities.
7. Charges
7.1 You must pay the Charges for the Initial Term in advance by credit card at the rate specified by Smartype in your Order.
7.2 Unless otherwise specified, the Charges are exclusive of taxes (except GST), duties and charges imposed or levied in Australia or elsewhere in connection with the supply of the Services. Without limiting the foregoing, you will be liable for any new taxes, duties or charges imposed in respect of the Services after the commencement of this Agreement.
7.3 During the Initial Term, you will receive the first 30 days of any support Services (as described in the Services Schedule ) ordered by you at no cost to you.
7.4 On or before the commencement of each renewal of this Agreement, Smartype will send an invoice to you by email for the Charges in respect of the Services for that renewal period.
7.5 Smartype will send you monthly invoices in arrears in respect of any Additional Charges payable by you.
7.6 Smartype will automatically debit your nominated credit card with the Charges and Additional Charges.
7.7 If you dispute the amount of any invoice, you must notify Smartype in writing within 7 days of the date of the relevant invoice.
7.8 Without limiting its other remedies, Smartype may charge you an administration fee of AUD$20 if your credit card payment is reversed or is not authorised or approved.
7.9 You must pay interest to Smartype on all amounts which remain unpaid under this Agreement after the due date at the rate of 10% per annum calculated daily from the date on which such amount was due up to and including the date on which payment is made in full.
7.10 Smartype may vary the Charges and Additional Charges without notice to you.? The varied Charges will take effect at the commencement of the next renewal date of this Agreement, and the varied Additional Charges will take effect immediately.
7.11 In addition to paying the Charges and any other amount payable under or in connection with, this Agreement, you must:
(a) pay to Smartype an amount equal to any GST payable for any supply by Smartype in respect of which the Charges or other amount is payable under this Agreement; and
(b) make such payment
(c) on the date when the Charges or other amounts to which it relates is due.
7.12 Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
8. PROHIBITED ACTS
8.1 You must not or allow anyone else to:
(a) use the Services for any illegal purpose or in a way contrary to any law;
(b) resell, onsell, hire, lease or otherwise make the Services available to third parties;
(c) tamper with, hinder the operation of or make any unauthorised modifications to the Services;
(d) delete any other person"s Customer Data without Smartype's permission;
(e) knowingly transmit spyware, a computer virus, worm or other disabling feature to Smartype or any other person using the Services;
(f) use the Services to access another person"s computer system without permission;
(g) use the Services to copy, store, distribute or transmit any materials in violation of another person"s Intellectual Property Rights;
(h) disclose your Access Codes for the Services to a third party; or
(i) fail to adequately protect your Access Codes for the Services.
8.2 Subject to clause 11 , Smartype is under no obligation to refrain from delivering Customer Data or related data, documentation or records into the custody of a duly authorised law enforcement officer or government representative, officer or agency or from providing such persons or instrumentalities with access to Customer Data or related data, documentation or records if Smartype receives a request or demand for such information.
8.3 You must to the extent permissible by law indemnify Smartype against all costs and liability incurred as a result of:
(a) its possession, processing, use or other handling of Customer Data or related data, documentation or records; and
(b) delivering materials or information to a third party in accordance with clause 8.2.
8.4 Clause 8.3 survives the expiration or termination of this Agreement.
9. INTELLECTUAL PROPERTY
The Intellectual Property Rights in the Services and all user manuals and other materials which may be associated with the Services remain with Smartype, and except as otherwise specified, nothing in this Agreement will be taken to grant to you any rights in those Intellectual Property Rights.
10. Confidentiality
10.1 You must keep confidential the Confidential Information of Smartype, and must not disclose or supply the Confidential Information to any third party or use it for any purpose, except as authorised by this Agreement.
10.2 You may disclose the Confidential Information of Smartype to your employees, subcontractors and agents who have a need to know that information for the purposes of this Agreement, and who are bound by an obligation of confidence in respect of that information.
10.3 You must implement reasonable precautions to prevent the unauthorised disclosure of Smartype's Confidential Information by your employees, subcontractors or agents.
10.4 Clause 10.1 does not apply to any Confidential Information which:
(a) was known or used by you prior to its date of disclosure, as evidenced by your prior written records;
(b) either before or after the date of the disclosure to you, is lawfully disclosed to you by a third party rightfully in possession of the Confidential Information and entitled to disclose it;
(c) either before or after the date of the disclosure to you, is or becomes public knowledge;
(d) is independently developed by or for you without reference to or reliance upon the Confidential Information; or
(e) is required to be disclosed by you to comply with applicable laws, to defend or prosecute litigation, or to comply with governmental regulations, provided that you give Smartype prior written notice of such disclosure and takes reasonable and lawful steps to avoid and/or minimise the degree of such disclosure.
10.5 This clause will survive the termination of this Agreement.
11. PRIVACY
11.1 Except with your prior written approval, Smartype will not use any Personal Information for a purpose other than the collection, use, disclosure, storage or handling of that information to the extent necessary to comply with its obligations under this Agreement ("Permitted Purpose").
11.2 Smartype will not disclose any Personal Information for a purpose other than a Permitted Purpose without your prior written consent unless the disclosure is required by law.
11.3 Smartype will comply with the National Privacy Principles or with an applicable privacy code approved by the Australian Federal Privacy Commissioner under the Privacy Act 1988 (Cth) with respect to any act or practice of Smartype under this Agreement in the same way and to the same extent as you would have been required to comply had the act or practice been done or engaged in by you.
11.4 Smartype will:
(a) take reasonable steps to protect Personal Information in its possession or control against misuse and loss from unauthorised access, modification or disclosure;
(b) only allow its employees, officers, contractors and agents to access any Personal Information where necessary for a Permitted Purpose; and
(c) on the earlier of the expiry or termination of this Agreement or when requested by you, at Smartype's option, return destroy or de-identify all Personal Information.
11.5 Smartype will correct any Personal Information if notified by you that such Personal Information is not accurate, complete or up to date.
11.6 In relation to the handling of any Personal Information, Smartype will comply with any reasonable request by you made for the purpose of you implementing:
(a) any obligations under the Privacy Act 1988 (Cth) ;
(b) any applicable guideline, recommendation, direction or determination issued by the Australian Federal Privacy Commissioner; or
(c) any reasonable requirements of your privacy policy.
11.7 This clause 11 survives the expiration or termination of this Agreement.
12. Implied Terms
12.1 Subject to clause 12.2, any term, condition or warranty which would otherwise be implied into this Agreement by law is hereby excluded.
12.2 Where legislation implies into this Agreement any term, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application or exercise of or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Agreement.However, the liability of Smartype for any breach of such condition or warranty will be limited, at the option of Smartype, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
13. Liability of Smartype
13.1 To the maximum extent permitted by law, Smartype's liability during the Initial Term and each renewal of that term is limited to the amount of the Charges paid by you during the 12 month period in which such liability was incurred by Smartype.
13.2 Smartype will not be liable for any consequential, special or indirect loss or damage which may be incurred or suffered by you in respect of this Agreement, including any loss of data, time, goodwill, profits or savings, or damage to hardware or software which may arise from the use, operation, maintenance or failed use of the Services, or from defects, delays, errors, omissions or interruptions in the Services.
13.3 Smartype does not warrant that the Services will be uninterrupted or error free.
13.4 Subject to clause 13.5, you warrant that you have not relied on any representation made by Smartype 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 Smartype.
13.5 You acknowledge that to the extent Smartype has made any representation which is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.
13.6 You must at all times indemnify and hold harmless Smartype and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) a breach by you of your obligations under this Agreement; or
(b) any wilful, unlawful or negligent act or omission by you.
13.7 Clause 13.6 survives the expiration or termination of this Agreement.
14. SUSPENSION OF SERVICES
Without limiting Smartype's rights under clause 15, Smartype may suspend or cancel the provision of the Services if:
(a) there is an emergency;
(b) your payment of the Charges or Additional Charges is reversed or is not authorised or approved;
(c) your Access Facilities or use of the Services interferes with Smartype, Smartype's computer systems or the provision of the Services;
(d) you do one of the acts referred to in clause 8.1 in breach of that clause; or
(e) Smartype is required to do so by law or a court order.
15. Termination
15.1 After the Initial Term, either Party may terminate this Agreement at any time on at least 14 days" prior written notice to the other Party.
15.2 Without limiting the generality of any other clause in this Agreement, Smartype may terminate this Agreement immediately by notice in writing if:
(a) you are in breach of any term of this Agreement and, where such breach is remediable, that breach is not remedied within 14 days of Smartype notifying you of that breach;
(b) your payment of the Charges or Additional Charges is reversed or is not authorised or approved;
(c) you do one of the acts referred to in clause 8.1 in breach of that clause;
(d) a claim is made or threatened against Smartype or Smartype is exposed to potential liability for a statutory penalty, infringement of third party rights or an offence due to the acts of Smartype;
(e) you become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
(f) you, being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;
(g) you, being a natural person, die; or
(h) you cease or threaten to cease conducting your business in the normal manner.
15.3 If notice is given to you pursuant to clause 15.1 or 15.2, Smartype may, in addition to terminating the Agreement:
(a) repossess any of its property in the possession, custody or control of you;
(b) subject to clause 14.4, retain any moneys paid;
(c) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(d) be regarded as discharged from any further obligations under this Agreement; and
(e) pursue any additional or alternative remedies provided by law.
15.4 If Smartype terminates this Agreement pursuant to clause 15.1, then Smartype will refund to you any Charges on a pro rata basis for the unexpired period to which those Charges relate, less any outstanding Additional Charges or other fees that may be owed by you to Smartype.
16. Sub Contracts
Smartype may sub contract the performance of this Agreement or any part of this Agreement in its absolute discretion.
17. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
18. Assignment and Novation
18.1 You must not assign the benefit of this Agreement without Smartype's prior written consent.
18.2 Smartype may consent to the assignment or novation of this Agreement by you subject to such conditions as it chooses to impose.
19. Waiver
19.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party.
19.2 A waiver by Smartype pursuant to clause 19.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by you.
19.3 Subject to clause 19.1, any failure by Smartype to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Smartype to you, will not be construed as a waiver of Smartype's rights under this Agreement.
20. Variation
20.1 Smartype may vary the terms of this Agreement without advance notice to you.
20.2 Notice of any variations to this Agreement will be posted on Smartype's website as soon as practicable after they occur. Smartype may also, in its discretion, notify you by email of any such changes.
20.3 If you object to any variations to this Agreement, you must notify Smartype within 7 days of becoming aware of such change, and immediately cease using the Services.
21. Smartype's Rights
Any express statement of a right of Smartype under this Agreement is without prejudice to any other right of Smartype expressly stated in this Agreement or existing at law.
22. Survival of Agreement
22.1 Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.
22.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement will remain in full force and effect following the expiration of the Agreement.
23. Severability
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement will remain otherwise in full force apart from such provisions which will be deemed deleted.
24. Governing law and jurisdiction
24.1 This? Agreement is governed by the laws of Queensland and the Commonwealth of Australia.
24.2 Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and must not:
(a) object to an action being brought in the Queensland Registry of a court of that State or Federal Court; or
(b) assert that any action has been brought in an inconvenient forum;
and each party undertakes to refrain from:
(c) bringing an action in any other court or tribunal whether within Australia or otherwise; and
(d) seeking pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 Qld (as amended) or otherwise to transfer any action to another State or Territory;
in relation to any dispute which arises directly or indirectly from this Agreement.
25. Notices
25.1 Notices under this agreement may be delivered by hand, mail or facsimile to:
(a) iSmart Software | Smartype at:
243 Milton Road, Milton, Queensland 4064, Australia
Facsimile:+61 7 3368 3017
(b) you at the address and facsimile number specified in your Order.
25.2 Notice will be deemed given:
(a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
(b) in the case of posting, three days after despatch; and
(c) in the case of facsimile, upon receipt of transmission if received on a Business Day or otherwise at the commencement of the first Business Day following transmission.
26. Interpretation
26.1 In this Agreement, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and are not relevant to interpretation;
(b) a reference to a clause number is a reference to its subclauses;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(f) a reference to a clause is a reference to a clause or clause of this Agreement;
(g) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
(h) monetary references are references to Australian currency.