VETTRAK SOFTWARE – LOCAL INSTALL – END USER LICENCE AGREEMENT

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

When used in this Agreement, the following terms shall have the following meanings, unless the context requires otherwise:

“Add-Ons” means advanced functionality to support the Software which you may order under clause 5;

“Agreement” means this agreement and the Order Form;

“Confidential Information” means the Software, the Subscription, the terms and conditions of this Agreement, and any other information pertaining to the business or affairs of either party which is provided to, or otherwise comes to your knowledge of, the other party in connection with this Agreement and which the other party ought reasonably to know (having regard to the nature of the information) is confidential to that party

“Delivery Date” means the date on which VETtrak provides access to the Licensed Software to you;

“Documentation” means material describing the functional processes, assumptions, specifications and principle operations of the Licensed Software which has been designated by VETtrak as the official documentation for the Licensed Software, as published by VETtrak from time to time;

“Intellectual Property Rights” means all intellectual property rights throughout the world including but not limited to the following rights:

  1.  patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks) and domain names and any right to have confidential information kept confidential;
  2. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
  3. all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,

whether or not such rights are registered or capable of being registered;

“Liability” means any liability on any basis, whether in contract (including for breach of warranty), tort (including negligence), under any other rule of common law, equity or statute, or under any other legal theory;

“Licensed Software” means the computer programs described in the Order;

“Maintenance Services” means the annual maintenance and support services you have ordered for the Licensed Software comprising of:

  1. the provision of telephone support services for technical queries only in relation to the Licensed Software between the hours of 0900 and 1700 on Monday to Friday, Australian Eastern Standard Time;
  2. the provision of Software Upgrades; and
  3. the provision of custom reports that may be reasonably requested by you;

which VETtrak makes generally available to licensees of the Licensed Software who have ordered such services;

“Order Form” means your order for software from VETtrak and which references these terms and conditions;

“VETtrak” means VETtrak Pty Ltd;

“Software” means the Licensed Software, Software Upgrades and/or Add- Ons;

“Software Upgrade” means an update or upgrade to the Licensed Software which VETtrak makes generally available to licensees of the Licensed Software who have ordered Maintenance Services;

“Subscription” means the VETtrak service which provides you with access and use of the Software and Maintenance Services;

“Subscription Fees” means the fees to be paid periodically to VETtrak as set out in the Order Form for the right to use the Software and receive the Maintenance Services pursuant to this Agreement;

“use” means to install, configure (in the manner permitted by the Software) and execute the functionality of the Software;

“Warranty Period” means a period of 12 months from delivery; and

“you” and “your” refers to the entity that has ordered the Licensed Software and Maintenance Services from VETtrak.

1.2 Interpretation

In this Agreement, headings are for convenience only and do not affect interpretation and unless the context indicates a contrary intention:

  1. a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
  2. the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
  3. if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  4. includes in any form is not a word of limitation;
  5. a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
  6. a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
  7. a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re enactments and replacements; and
  8. no provision will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

2. GRANT OF LICENCE

  1. Subject to your payment of the Subscription Fees, and you complying with the terms of this Agreement, VETtrak grants you a perpetual and (except where this Agreement is terminated by VETtrak in accordance with its terms) irrevocable, non-transferable, non-exclusive licence to:
    1. install and use the Software;
    2. integrate the Software with your software; and
    3. use the Documentation,

    for the purposes of providing and administering training courses as part of your internal business operations.

  2. The licence granted under clause 2(1) permits you to make a reasonable number of copies of the Software and Documentation for backup or disaster recovery purposes, provided that all such copies are subject to the terms of this Agreement.
  3. The licence granted under clause 2(1) is granted:
    1. for up to the number of concurrent users specified in your Order Form; and
    2. for use within Australia and New Zealand only, unless otherwise specified in the Order Form; and
    3. subject to any additional restrictions or limitations specified in the Order Form.
  4. VETtrak reserves all rights not expressly granted to you in this Agreement.
  5. You acknowledge that VETtrak has no delivery obligation for the Software and Documentation and will not deliver physical copies of such items to you.

3. SUBSCRIPTION FEES AND PAYMENT

  1. You shall pay the Subscription Fees to VETtrak in accordance with the Order Form.
  2. You will pay all amounts due to VETtrak in Australian dollars within 30 days of receiving an invoice for the relevant amount. Any overdue amount will be subject to interest at the rate 2% per annum above the amount of interest charged by VETtrak’s bank on overdrafts of that amount. VETtrak may provide you with invoices on a quarterly, monthly, bi-annual or annual basis, or such other time period as agreed in the Order Form.
  3. You shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to the licensing of the Software, or arising out of or in connection with this Agreement, other than taxes levied or imposed based upon VETtrak’s income. In the event that VETtrak pays any such taxes on your behalf, VETtrak shall invoice you for such taxes and you agree to pay such taxes in accordance with this Agreement.

4. MAINTENANCE SERVICES

  1. Upon the payment of the Subscription Fees, VETtrak will provide you the ordered Maintenance Services during the 12 month period commencing on the date of the Order Form (First Year Support).
  2. You may at any time request VETtrak to provide additional annual Maintenance Services beyond First Year Support. If the request for additional Maintenance Services is agreed by VETtrak, VETtrak will issue you an order for the additional Maintenance Services setting out the fees payable for the additional Maintenance Services. The terms of this Agreement will govern your use and access of such additional Maintenance Services.
  3. To receive Maintenance Services, you must:
    1. access VETtrak’s support centre using the method notified by VETtrak from time to time including accessing the website specified by VETtrak and using any username and password that may be provided by VETtrak;
    2. provide VETtrak or a party nominated by VETtrak with access to and use of your information systems and facilities as may be necessary for VETtrak to provide the Maintenance Services;
    3. follow any operating procedures, and use any software, as may be specified in the Documentation or as may be notified by VETtrak from time to time; and
    4. comply with the VETtrak Reasonable Usage Policy (as may be updated from time to time) available on VETtrak’s website.
  4. VETtrak may, at its option, terminate the provision of Maintenance Services if:
    1. any part of the Software is altered or corrected by any person other than VETtrak or a person expressly authorised by VETtrak to effect the alteration or correction;
    2. you refuse to permit or fail to implement any amendment or enhancement which VETtrak provides as part of the Maintenance Services; or
    3. you do not comply with clauses 4(3), 6(2) and 7(5).
  5. If the Maintenance Services are terminated pursuant to clause 4(4), you will not be entitled to any refund of any part of any Subscription Fees previously paid.
  6. Without limiting clause 4(4), VETtrak may:
    1. modify or amend the Maintenance Services by providing no less than 90 days’ prior written notice to you; and
    2. terminate the Maintenance Services by providing no less than 6 months’ prior written notice to you.
  7. If the Maintenance Services are terminated under clause 4(6)(ii), VETtrak will refund to you a pro-rata portion of the Subscription Fees previously paid for the terminated Maintenance Services taking into account the unexpired period for which the Subscription Fees for Maintenance Services were paid.

5. ADD-ONS

You may at any time request the provision of Add-Ons. If the request for Add-Ons is agreed by VETtrak, VETtrak will issue you an order for the Add-Ons setting out the additional fees payable for the Add-Ons. The terms of this Agreement will govern your use and access of such Add-Ons.

6. OWNERSHIP AND RESTRICTIONS

  1. VETtrak retains all ownership and Intellectual Property Rights in the Software and Documentation and anything that may be developed by VETtrak under or in connection with this Agreement, including under clause 6(2).
  2. For the duration of the term of this Agreement (including any additional period required to allow VETtrak to perform its obligations under this Agreement) you will allow VETtrak to:
    1. compile statistical and other information related to the performance, operation and use of the Subscription;
    2. use any of your data from the Subscription in an aggregated form for security and operations management, to create statistical analyses, for research and development purposes or for any other purpose required by VETtrak; and
    3. charge any third party for, or otherwise derive income from, anything developed or compiled under this clause 6(2), provided that VETtrak otherwise complies with the terms of this Agreement.
  3. Unless specifically authorised in the Documentation or by VETtrak in writing, you must not:
    1. modify or alter the Software or Documentation;
    2. remove any patent, copyright, trademark or other Intellectual Property Rights notices that may appear on any part of the Software or Documentation;
    3. create derivative works based on or from the Software or Documentation;
    4. provide, or make the Software or Documentation, available in any manner to a third party by any means, or operate the Software for the benefit of a third party’s business, except as expressly permitted by the Documentation;
    5. transfer, sublicense, assign, rent, lease, lend, sell, mortgage, charge or otherwise encumber any rights in, or distribute, copy, translate or electronically transmit the Software or Documentation;
    6. use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment;
    7. use the Software or Documentation in any way that will infringe the Intellectual Property Rights of VETtrak or any other person; or
    8. except and only to the extent not prohibited by law, reverse engineer, de-encrypt, decompile, disassemble, or attempt to derive the source code of any Software in whole or in part.
    9. use the Software in contravention of any restrictions set out in this Agreement or the Order Form or in any manner not expressly permitted by this Agreement; or
    10. make any copies of the Software, except as permitted under clause 2(2).
  4. Nothing in this Agreement excludes any rights you have under any of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth). If you require any information of the type referred to in section 47D(b) of that Act you will first request that information from VETtrak (to the extent you do not already have that information).

7. CONFIDENTIALITY AND PRIVACY

  1. Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
  2. A party may only use or reproduce the Confidential Information of the other party for the purposes of performing the first party’s obligations or exercising the first party’s rights under this Agreement.
  3. A party:
    1. must not disclose the Confidential Information of the other party to any person except as permitted by this Agreement;
    2. must not make, assist or permit any person (including its Representatives) to make any unauthorised use, disclosure or reproduction of the Confidential Information of the other party;
    3. must take reasonable steps to:
      1. ensure that any person who has access to Confidential Information of the other party does not make any unauthorised use, reproduction or disclosure of that information; and
      2. enforce the confidentiality obligations imposed or required to be imposed by this Agreement including diligently prosecuting at its cost, any breach or threatened breach of those confidentiality obligations by a person to whom it has disclosed Confidential Information of the other party and, where appropriate, making applications for interim or interlocutory relief; and
    4. must co operate with the other party in any action which the other party may take to protect the confidentiality of its Confidential Information.
  4. A party may disclose Confidential Information of the other party:
    1. to employees of the first mentioned party requiring the information for the purposes contemplated by this Agreement;
    2. to legal advisers of the first mentioned party for the purposes of advising the party in respect of any matter relating to this Agreement; or
    3. to any other Representative of the first mentioned party only with the prior written consent of the other party,

    but in each case, only to the extent necessary for the relevant purpose and provided that the person to whom the Confidential Information is disclosed is specifically made aware of the confidential nature of the information.

  5. A party may disclose Confidential Information of the other party:
    1. to the extent required by law or by a lawful requirement of any government or governmental body, authority or agency having authority over the first mentioned party;
    2. to the extent required by the rules of any stock exchange with which the first mentioned party (or its parent, subsidiary or other related company) is bound to comply; or
    3. if required in connection with legal proceedings relating to this Agreement,

    but in each case, subject to the first mentioned party giving the other party sufficient notice of any proposed disclosure to enable that other party to seek a protective order or other remedy to prevent the disclosure.

  6. Except as otherwise agreed or required by law or any regulatory authority, neither party may disclose the terms of this Agreement to any person other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
  7. VETtrak undertakes that it will only use and disclose Personal Information disclosed to it by you in connection with the Subscription (Your Personal Information) as required to provide the Subscription under this Agreement, or as permitted under clause 7.
  8. VETtrak will take reasonable steps to prevent any unauthorised use of, or access to, Your Personal Information while in VETtrak’s possession or control.
  9. VETtrak will make sure its personnel undergo training as reasonably required to assist VETtrak to comply with this clause.
  10. You must ensure that you obtain all consents and approvals required to permit VETtrak to use and disclose Your Personal Information as required for the purpose of providing the Subscription, and warrants that by providing such information to VETtrak it has obtained all such consents and approvals.

8. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

  1. Subject to clauses 7(2), 7(5) and 7(6), VETtrak warrants that the Software will operate in accordance with the applicable Documentation.
  2. If the Software fails to operate in accordance with the applicable Documentation and you notify VETtrak of this failure within 12 months after the Software is available for download, VETtrak will:
    1. at VETtrak’s cost, correct the failure in the Software; or
    2. if VETtrak is unable to correct the failure in a commercially reasonable manner, you may terminate this Agreement and recover the Subscription Fees paid by you that are attributable to the failed Software.
  3. Subject to clauses 7(4) and 7(6), VETtrak warrants that the Maintenance Services (other than a Software Upgrade) will be provided in a professional manner consistent with industry standards for similar services.
  4. If VETtrak fails to provide the Maintenance Service (other than a Software Upgrade) in the manner warranted under clause 7(3) and you notify VETtrak of the failure within 90 days from the performance of the failed Maintenance Service, VETtrak will:
    1. re-perform the failed Maintenance Service; or
    2. if VETtrak cannot re-perform the failed Maintenance Service in a commercially reasonable manner, you may terminate this Agreement and recover the Subscription Fees you paid to VETtrak that are attributable to the failed Maintenance Service.
  5. The warranties in clause 7(1) will not apply if:
    1. the Software is not maintained or installed in accordance with the applicable Documentation;
    2. the Software is altered, modified or corrected by any person who is not authorised by VETtrak to do so; or
    3. the failure of the Software resulted from your defective computer or equipment.
  6. Notwithstanding any other clause in this Agreement:
    1. the Documentation is provided as is and without any warranties;
    2. VETtrak does not warrant that the Software or Maintenance Services will perform error-free or uninterrupted or that VETtrak will correct all errors in such items; and
    3. to the extent not prohibited by applicable law:
      1. the warranties in clauses 7(1) and 7(3) are exclusive and there are no other express or implied warranties including, but not limited to, warranties of merchantability or fitness for a particular purpose; and
      2. if VETtrak breaches the warranty in clauses 7(1) or 7(3), your exclusive remedy and VETtrak’s entire liability for breach of these warranties will be the remedies set out in clauses 7(2) and 7(4), respectively.
  7. Where legislation implies or applies to this Agreement any condition, warranty or guarantee, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under the condition, warranty or guarantee, the condition, warranty or guarantee will apply. However, to the extent permitted by law, the liability of VETtrak for any breach of the condition, warranty or guarantee is limited at the option of VETtrak to providing again or paying the cost of providing again the goods or services in respect of which the breach occurred.

9. LIMITATION OF LIABILITY

  1. To the extent permitted by applicable law, in no event will VETtrak have any liability for:
    1. loss of profits and loss of revenue;
    2. loss of goodwill or reputation;
    3. loss of anticipated savings;
    4. loss of data;
    5. loss of the ability to use data;
    6. business interruption;
    7. loss arising out of, or related to, your access or use of, or inability to access or use, the Software, Documentation or Maintenance Services; or
    8. any incidental, special, indirect, pecuniary or consequential loss,

    however caused, regardless of the nature of liability (contract, tort or otherwise) and even if VETtrak has been advised of the possibility of such loss or business interruption.

  2. To the extent permitted by applicable law, but subject to the exclusive remedy in clause 7(6)(iii)B, VETtrak’s maximum liability for any damages or loss arising out of or in connection with this Agreement, whether in contract, tort or otherwise, will be limited to the amount of the Subscription Fees actually paid by you to VETtrak under this Agreement.
  3. Clause 8(2) above does not limit VETtrak’s liability:
    1. for personal injury, including sickness and death;
    2. for loss of, or damage to, tangible property;
    3. under clause 9 ; or
    4. for any breach of confidence.
  4. Where you use the Software to provide services to a third party, you indemnify VETtrak against any Liability VETtrak may have to the third party in connection with the Software.
  5. Both parties understand and agree that the exclusions and limitations of liability in this Agreement allocate the risks of the Software and service nonconformity between the parties in a manner commensurate with the Subscription Fees, and that the Subscription Fees reflect, and have been set in reliance upon, the allocation of risk specified in this clause.
  6. Neither party shall be under any liability for any loss or for any failure to perform any obligation under this Agreement (other than an obligation to pay the Subscription Fees) due to any causes beyond its control including industrial disputes of whatever nature, power loss, telecommunications failure, natural disasters and acts of God.

10. INDEMNITY

  1. VETtrak hereby indemnifies you against any amount of loss or damage which VETtrak is legally required to pay to a third party by reason of a court order or settlement agreement, in respect of a claim that your use of the Software, infringes any person’s trade mark, copyright or rights in relation to confidential information, or moral rights, provided that:
    1. VETtrak is given prompt notice of the claim;
    2. VETtrak is given immediate and complete control over the defence and settlement of the claim (including the negotiation of any settlement agreement), and you provide all cooperation and assistance to VETtrak in relation to such defence or settlement as VETtrak reasonably requests;
    3. you do not prejudice in any manner VETtrak’s conduct of such claim; and
    4. the alleged infringement is not based upon the use of the Software in a manner prohibited under this Agreement, in a manner for which the Software was not designed, or in a manner not in accordance with the Documentation.
  2. VETtrak shall have no liability for any claim of infringement based on:
    1. the use of the Software in a manner not expressly authorised by this Agreement, or in a manner for which the Software was not designed;
    2. any modification or enhancement to the Software made by a person other than VETtrak;
    3. the compliance by VETtrak with your instructions, directions, specifications or requirements, or any information supplied by you;
    4. the use of a superseded or altered version of the Software, if the infringement would have been avoided by the use of a later version of the Software which VETtrak has made available to you (including by way of a Software Upgrade); or
    5. the combination, operation or use of the Software with software, hardware or other materials not provided by VETtrak.
  3. If a claim of the type described in clause 9(1) is made, VETtrak may, at its option and expense, either:
    1. procure for you (at VETtrak’s cost) the right to continue to use the Software;
    2. modify the Software so that they become non-infringing; or
    3. where neither of those options are in VETtrak’s reasonable opinion, commercially practicable, refund to you 50% of any Subscription Fees paid in advance under this Agreement, in which case the License will terminate and you shall, immediately upon receipt from VETtrak of the payment set forth above, destroy or return (at VETtrak’s option) all copies of the Software and Documentation in your possession or under your control.
  4. This clause 9 states VETtrak’s entire obligation and liability with respect to the infringement of any rights in relation to confidential information or any Intellectual Property Rights or any other proprietary rights of a third party.
  5. You hereby indemnify VETtrak against any claim for:
    1. alleged infringement of any registered copyright or patent, arising out of your use of the Software in any manner prohibited by this Agreement; and
    2. any claim related to or arising out of a financial transaction brought by any third party based on the use of the Software.

11. TERMINATION

  1. Without limiting any other right or remedy VETtrak may have against you, VETtrak may terminate this Agreement by written notice to you if:
    1. you commit a material breach of any term in this Agreement which cannot be remedied;
    2. you breach any term of this Agreement and fail to remedy that breach within 14 days of receiving notice requiring you to do so; or
    3. you become or are deemed to be insolvent under the Corporations Act 2001 (Cth) or any other applicable law, become unable to pay your debts as and when they fall due, have an administrator, receiver and manager, liquidator or other similar officer appointed in respect of you or your assets (or an application is made to a court, not withdrawn within 14 days, for the appointment of such a person) make an assignment for the benefit of your creditors, file for any voluntary bankruptcy, or under provisions of any law of another jurisdiction anything analogous to any of the above happens.
  2. For the purposes of clause 10(1), any breaches of clauses 3, 6 or 11 will be deemed to be a “material” breach of this Agreement, and a series of minor breaches which are related or together have a particular effect may be considered together for the purposes of determining whether a “material” breach of this Agreement has occurred.
  3. Upon termination of this Agreement, you must cease all use of the Software and Documentation and destroy all copies of such material.

12. AUDIT

  1. Upon 7 days’ prior written notice, VETtrak may audit your use of the Software and Documentation.
  2. During the conduct of the audit, you must, at your own cost:
    1. cooperate with VETtrak’s auditors; and
    2. provide reasonable assistance and access to any premises, books, records, documents, computer systems, equipment or information required by the auditor to verify your compliance with this Agreement, including, but not limited to, the correct calculation of any fees or charges paid or payable by you under this Agreement.
  3. You must, within 30 days of written notification, pay any additional fees (calculated at VETtrak’s rates at the time of the audit) that are applicable to your use of the Software in excess of your rights under this Agreement which may be discovered during VETtrak’s audit.

13. GENERAL

  1. Varying this Agreement: This Agreement may only be varied by written agreement of both parties.
  2. Assignment and novation: You may not assign this Agreement or give or transfer the Software, Documentation or Maintenance Services or an interest in them to another individual or entity. VETtrak may assign this Agreement or VETtrak’s rights or obligations under this Agreement at any time without your consent.
  3. Entire Agreement: This Agreement, together with the Order Form, constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
  4. Severability: If any part of this Agreement is void or unenforceable, it is severed and will be deemed to be omitted to the extent that it is void or unenforceable, and the remainder of this Agreement will remain in full force and effect.
  5. Waiver: A waiver by either party in respect of a breach of a term of this Agreement by the other party will not be taken to be a waiver in respect of any other breach. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
  6. Governing law and jurisdiction: This Agreement is governed by and will be construed in accordance with the laws of the State of Victoria, Australia, and each party agrees to submit to the non-exclusive jurisdiction of the courts in that State.
  7. Notices: any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in the Order Form. Notice shall be deemed to have been received by any party, and shall be effective:
    1. on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified; or
    2. on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail.
  8. Survival: Termination of this Agreement for any reason will not affect any rights or remedies of either party already accrued under, or in respect of, any breach of, this Agreement or the operation of clauses 3, 6, 7, 8 or 9 of this Agreement.
  9. Further Assurances: Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by another party to give effect to this Agreement.

VETTRAK – HOSTED – END USER LICENCE AGREEMENT

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

When used in this Agreement, the following terms shall have the following meanings, unless the context requires otherwise.

“Add-Ons” means advanced functionality to support the Software which you may order under clause 3;

“Agreement” means this agreement and the Order Form;

“Applications” means your software programs, including any source code for such programs, provided by you that are uploaded, reside in, run on or run through, the Subscription Environment;

“Confidential Information” means the Software, the Subscription, the terms and conditions of this Agreement, and any other information pertaining to the business or affairs of either party which is provided to, or otherwise comes to your knowledge of, the other party in connection with this Agreement and which the other party ought reasonably to know (having regard to the nature of the information) is confidential to that party

“Content” means all text, files, images, graphics, illustrations, information, data (including any personal information, audio, video, photographs and other content and material (other than your Applications), in any format, provided by you that are uploaded, reside in, run on or run through, the Subscription Environment;

“Documentation” means material describing the functional processes, assumptions, specifications and principle operations of the Licensed Software which has been designated by VETtrak as the official documentation for the Licensed Software;

“Fees” means the Initial Set-Up Fee and the Subscription Fees;

“Initial Set-Up Fee” means the fees payable by you for the set-up of the Subscription Environment for your Subscription as set out in the Order Form;

“Initial Subscription Period” means the period specified in clause 11(1) of this Agreement;

“Intellectual Property Rights” means all intellectual property rights throughout the world including but not limited to the following rights:

  1. patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks) and domain names and any right to have confidential information kept confidential;
  2. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
  3. all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,

whether or not such rights are registered or capable of being registered.

“Licensed Software” means the computer programs described in the Order Form which are part of the Subscription set out in the Order Form;

“Maintenance Services” means the maintenance and support services provided as part of the Subscription which comprises of:

  1. the provision of telephone support services for technical support queries only in relation to the Subscription between the hours of 0900 and 1700 on Monday to Friday, Australian Eastern Standard Time; and
  2. the provision of custom reports that may be reasonably requested by you,

which VETtrak makes generally available to customers who have ordered the Subscription

“Order Form” means your order for the Subscription from VETtrak and which references these terms and conditions;

“VETtrak” means VETtrak Pty Ltd;

“Software” means the Licensed Software, Software Upgrades and/or Add-Ons.

“Subscription Period” means the Initial Subscription Period plus any extensions to this period in accordance with clause 11(2);

“Subscription” means the VETtrak service which provides you with access and use of the Software and Maintenance Services;

“Subscription Environment” refers to the combination of hardware and software components owned, licensed or managed by VETtrak from which the Subscription is provided by VETtrak to you;

“Subscription Fees” means the fees to be paid periodically to VETtrak as set out in the Order Form for the right to use the Licensed Software and receive the Maintenance Services pursuant to this Agreement;

“Software Upgrade” means an update or upgrade to the Licensed Software which VETtrak makes generally available to licensees of the Licensed Software who have ordered the Subscription; and

“you” and “your” refers to the entity that has ordered the Subscription from VETtrak.

1.2 Interpretation

In this Agreement, headings are for convenience only and do not affect interpretation and unless the context indicates a contrary intention:

  1. a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
  2. the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
  3. if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  4. includes in any form is not a word of limitation;
  5. a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
  6. a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
  7. a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re enactments and replacements; and
  8. no provision will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

2. ACCESS AND USE OF THE SUBSCRIPTION

  1. Subject to your paying the Fees and complying with the terms of this Agreement, VETtrak grants you a non-exclusive, non-transferable and (except where this Agreement is terminated by VETtrak in accordance with its terms) irrevocable, licence for the duration of the Subscription Period to:
    1. access and execute the functionality of the Software as part of the Subscription and use the Documentation; and
    2. integrate the Software (to the extent permitted by the Software, as made available as part of the Subscription) with your Applications,

    for the purposes of providing and administering training courses as part of your internal business operations.

  2. The licence granted under clause 2(1) is granted:
    1. for up to the number of concurrent users specified in the Order Form;
    2. for access and use within Australia and New Zealand only, unless otherwise specified in the Order Form; and
    3. subject to any additional restrictions or limitations specified in the Order Form.
  3. VETtrak reserves all rights not expressly granted to you in this Agreement.
  4. You acknowledge that VETtrak has no delivery obligation for the Software and Documentation and will not be required to deliver any copies of the Software to you as part of the Subscription.

3. ADD-ONS

You may at any time request the provision of Add-Ons to be included as part of the Subscription. If the request for Add-Ons is agreed by VETtrak, VETtrak will issue you an order for the Add-Ons setting out the additional fees payable for the Add-Ons. The terms of this Agreement will govern your use and access of such Add-Ons.

4. USE OF THE SUBSCRIPTION

  1. VETtrak shall provide the Subscription on the terms and conditions set out in this Agreement.
  2. Subject to otherwise complying with its obligations under this Agreement, VETtrak shall exercise its independent discretion as to the most appropriate and effective manner for providing the Subscription.
  3. Customer will:
    1. use the method notified by VETtrak from time to time to access and use the Subscription. Such methods may include for example accessing a website specified by VETtrak and using any username and password that may be provided by VETtrak;
    2. for the duration of the Subscription Period and any additional period required to allow VETtrak to perform its obligations under clause 11(8)(ii), provide VETtrak with access to and a right to use, process, and transmit your Content and your Applications for the purposes of providing the Subscription and for any other purposes specified in this Agreement;
    3. for the duration of the Subscription Period and any additional period required to allow VETtrak to perform its obligations under clause 11(8)(ii), allow VETtrak to:
      1. compile statistical and other information related to the performance, operation and use of the Subscription; and
      2. use any of your data from the Subscription Environment in an aggregated form for security and operations management, to create statistical analyses, for research and development purposes or for any other purpose required by VETtrak.
    4. not challenge VETtrak’s right to charge any third party for, or otherwise derive income from, anything developed or compiled under clause 4(3)(ii) or 4(3)(iii), provided that VETtrak otherwise complies with the terms of this Agreement;
    5. follow any operating procedures, and use any software as may be specified in the Documentation or as may be notified by VETtrak from time to time;
    6. comply with the VETtrak Reasonable Usage Policy (as may be updated from time to time) available on VETtrak’s website; and
    7. provide any additional assistance and information VETtrak reasonably requests for the purpose of providing the Subscription.
  4. Without limiting any other term of this Agreement, you acknowledge that your failure to comply with clause 4(3) may prevent VETtrak from providing the Subscription in accordance with this Agreement. VETtrak will not be liable for any failure to provide the Subscription in accordance with this Agreement to the extent that failure arises as a result of you failing to comply with clause 4(3).

5. FEES AND PAYMENTS

  1. In consideration of VETtrak providing the Subscription, you shall pay VETtrak the Fees in accordance with this clause 5 and the Payment Terms stated in the Order Form.
  2. You are not required to pay any amount under this Agreement until you have received a Tax Invoice in respect of that amount. VETtrak must ensure that all invoices detail the amount due in a level of detail reasonably necessary to permit you to identify the Subscription to which that amount relates. VETtrak may provide you with Tax Invoices on a quarterly, monthly, bi-annual or annual basis, or such other time period as agreed in the Order Form.
  3. A party may only dispute an invoice within the 7 day period following its receipt of that invoice, by notice setting out the amount on the invoice which it disputes (the “Disputed Amount”) and the reasons why it considers it is not obligated to pay the Disputed Amount. Where a party (acting reasonably and in good faith) disputes any invoice in accordance with this clause;
    1. the party’s failure to pay a Disputed Amount will not be taken to be a breach of this Agreement;
    2. the party disputing the invoice must pay the balance of the invoice to the other party in accordance with this Agreement;
    3. the parties must refer to the Dispute Resolution Committee the issue of whether or how much of the Disputed Amount is payable;
    4. on the Dispute Resolution Committee determining the amount of the Disputed Amount which is payable, the party who originally disputed the invoice must immediately pay that amount to the other party; and
    5. interest is payable at the rate of 2% per annum above the amount of interest charged by the RTOMS bank on overdrafts of that amount to the other party on any part of the Disputed Amount which is found to be payable by the Dispute Resolution Committee.
  4. You shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to the Subscription, or arising out of or in connection with this Agreement, other than taxes levied or imposed based upon VETtrak’s income. In the event that VETtrak pays any such taxes on your behalf, VETtrak shall invoice you for such taxes and you agree to pay such taxes in accordance with this Agreement.
  5. Subject to clause 5(6), where GST is imposed on any supply made under this Agreement by one party (“Supplying Party”) to another party (“Receiving Party”), the Receiving Party must pay or provide the GST Exclusive Consideration for the supply and, in addition to and at the same time as the GST Exclusive Consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST Exclusive Consideration (without deduction or set-off) by the prevailing GST rate. This clause does not apply to a supply for which a GST inclusive consideration has been agreed unless the supply is made after a change to the GST rate has been effected and the agreed GST inclusive consideration has not had the GST rate change taken into account, in which case the consideration payable for the supply shall be calculated pursuant to this clause.
  6. The Receiving Party is not required to pay any amount of GST to the Supplying Party unless the Supplying Party has made demand for payment by means of a Tax Invoice.
  7. If the amount of GST recovered by the Supplying Party from the Receiving Party differs from the amount of GST payable at law by the Supplying Party (or an entity grouped with the Supplying Party for GST purposes) in respect of the supply, the amount payable by the Receiving Party to the Supplying Party will be adjusted accordingly.
  8. Where one party (“Payer”) is liable to reimburse another party (“Payee”) for any expenditure incurred by the Payee (“Expenditure”), the amount reimbursed by the Payer shall be the GST exclusive Expenditure plus any GST payable to the Payee by the Payer pursuant to clause 5(5).
  9. Other than payment of the relevant amounts under clauses 5(1), 5(4), 5(5), 5(6), 5(7) and 5(8) (if any), there are no other amounts payable by you under this Agreement.

6. OWNERSHIP AND RESTRICTIONS

  1. VETtrak retains all ownership and Intellectual Property Rights in the Software and Documentation and anything that may be developed by VETtrak under or in connection with this Agreement.
  2. Subject to the right to use your Content, Applications and data in clause 4(3)(ii) and 4(3)(iii) and anything that may be developed or produced by VETtrak thereunder, you retain all ownership and Intellectual Property Rights in, and to, your Content and your Applications
  3. Unless specifically authorised in the Documentation or by VETtrak in writing, you must not:
    1. modify or alter the Software or Documentation;
    2. remove any patent, copyright, trademark or other Intellectual Property Rights notices that may appear on any part of the Software or Documentation;
    3. create derivative works based on or from the Software or Documentation;
    4. provide, or make the Software or Documentation, available in any manner to a third party;
    5. transfer, sublicense, assign, rent, lease, lend, sell, mortgage, charge or otherwise encumber any rights in, or distribute, copy, translate or electronically transmit the Software or Documentation;
    6. use the Software or Documentation in any way that will infringe the Intellectual Property Rights of VETtrak or any other person;
    7. except and only to the extent not prohibited by law, reverse engineer, de-encrypt, decompile, disassemble, or attempt to derive the source code of the Software in whole or in part;
    8. use the Software in contravention of any restriction set out in this Agreement or the Order Form or in any manner not expressly permitted by this Agreement; or
    9. make any copies of the Software.
  4. Nothing in this Agreement excludes any rights you have under any of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth). If you require any information of the type referred to in section 47D(b) of that Act you will first request that information from VETtrak (to the extent you do not already have that information).

7. CONFIDENTIALITY AND PRIVACY

  1. Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
  2. A party may only use or reproduce the Confidential Information of the other party for the purposes of performing the first party’s obligations or exercising the first party’s rights under this Agreement.
  3. A party:
    1. must not disclose the Confidential Information of the other party to any person except as permitted by this Agreement;
    2. must not make, assist or permit any person (including its Representatives) to make any unauthorised use, disclosure or reproduction of the Confidential Information of the other party;
    3. must take reasonable steps to:
      1. ensure that any person who has access to Confidential Information of the other party does not make any unauthorised use, reproduction or disclosure of that information; and
      2. enforce the confidentiality obligations imposed or required to be imposed by this Agreement including diligently prosecuting at its cost, any breach or threatened breach of those confidentiality obligations by a person to whom it has disclosed Confidential Information of the other party and, where appropriate, making applications for interim or interlocutory relief; and
    4. must co operate with the other party in any action which the other party may take to protect the confidentiality of its Confidential Information.
  4. A party may disclose Confidential Information of the other party:
    1. to employees of the first mentioned party requiring the information for the purposes contemplated by this Agreement;
    2. to legal advisers of the first mentioned party for the purposes of advising the party in respect of any matter relating to this Agreement; or
    3. to any other Representative of the first mentioned party only with the prior written consent of the other party,

    but in each case, only to the extent necessary for the relevant purpose and provided that the person to whom the Confidential Information is disclosed is specifically made aware of the confidential nature of the information.

  5. A party may disclose Confidential Information of the other party:
    1. to the extent required by law or by a lawful requirement of any government or governmental body, authority or agency having authority over the first mentioned party;
    2. to the extent required by the rules of any stock exchange with which the first mentioned party (or its parent, subsidiary or other related company) is bound to comply; or
    3. if required in connection with legal proceedings relating to this Agreement,

    but in each case, subject to the first mentioned party giving the other party sufficient notice of any proposed disclosure to enable that other party to seek a protective order or other remedy to prevent the disclosure.

  6. Except as otherwise agreed or required by law or any regulatory authority, neither party may disclose the terms of this Agreement to any person other than its employees, accountants, auditors, financial advisers or legal advisers on a confidential basis.
  7. VETtrak undertakes that it will only use and disclose Personal Information disclosed to it by you in connection with the Subscription (Your Personal Information) as required to provide the Subscription under this Agreement, or as permitted under clause 7.
  8. VETtrak will take reasonable steps to prevent any unauthorised use of, or access to, Your Personal Information while in VETtrak’s possession or control.
  9. VETtrak will make sure its personnel undergo training as reasonably required to assist VETtrak to comply with this clause.
  10. You must ensure that you obtain all consents and approvals required to permit VETtrak to use and disclose Your Personal Information as required for the purpose of providing the Subscription, and warrants that by providing such information to VETtrak it has obtained all such consents and approvals.

8. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

  1. Subject to clauses 8(2), 8(5) and 8(6) , VETtrak warrants that the Software provided as part of the Subscription will operate in accordance with the applicable Documentation.
  2. If the Software fails to operate in accordance with the applicable Documentation and you notify VETtrak of this failure within 12 months after the Software is available for access as part of the Subscription, VETtrak will:
    1. at VETtrak’s cost, correct the failure in the Software; or
    2. if VETtrak is unable to correct the failure in a commercially reasonable manner, you may terminate this Agreement and recover the Subscription Fees paid by you that are attributable to the failed Software.
  3. Subject to clauses 8(4), and 8(6), VETtrak warrants that the Maintenance Services provided as part of the Subscription will be performed in a professional manner consistent with industry standards for similar services.
  4. If VETtrak fails to provide the Maintenance Service in the manner warranted under clause 8(3) and you notify VETtrak of the failure within 90 days from the performance of the failed Maintenance Service, VETtrak will:
    1. re-perform the failed Maintenance Service; or
    2. if VETtrak cannot re-perform the failed Maintenance Service in a commercially reasonable manner, you may terminate this Agreement and recover the Subscription Fees you paid to VETtrak that are attributable to the failed Maintenance Service.
  5. The warranties in clause 8(1) will not apply if:
    1. the Software is not maintained or installed in accordance with the applicable Documentation;
    2. the Software is altered, modified or corrected by any person who is not authorised by VETtrak to do so; or
    3. the failure of the Software resulted from your defective computer or equipment.
  6. Notwithstanding any other clause in this Agreement:
    1. the Documentation is provided as is and without any warranties;
    2. VETtrak does not warrant that the Subscription, Software or Maintenance Services will perform error-free or uninterrupted or that VETtrak will correct all errors in such items; and
    3. to the extent not prohibited by applicable law:
      1. the warranties in clauses 8(1) and 8(3) are exclusive and there are no other express or implied warranties including, but not limited to, warranties of merchantability or fitness for a particular purpose; and
      2. if VETtrak breaches the warranty in clauses 8(1) and 8(3), your exclusive remedy and VETtrak’s entire liability for breach of these warranties will be the remedies set out in clauses 8(2) and 8(4), respectively.
  7. Where legislation implies or applies to this Agreement any condition, warranty or guarantee, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under the condition, warranty or guarantee, the condition, warranty or guarantee will apply. However, to the extent permitted by law, the liability of VETtrak for any breach of the condition, warranty or guarantee is limited at the option of VETtrak to providing again or paying the cost of providing again the goods or services in respect of which the breach occurred.

9. LIMITATION OF LIABILITY

  1. To the extent permitted by applicable law, in no event will VETtrak have any liability for:
    1. loss of your Content;
    2. loss of your Applications;
    3. loss of profits and loss or revenue
    4. loss of goodwill or reputation
    5. loss of anticipated savings;
    6. loss of data;
    7. loss of the ability to use data;
    8. business interruption;
    9. loss arising out of, or related to, your access or use of, or inability to access or use, the Software, Documentation or Maintenance Service, or Subscription; or
    10. any incidental, special, indirect, pecuniary or consequential loss,

    however caused, regardless of the nature of liability (contract, tort or otherwise) and even if VETtrak has been advised of the possibility of such loss or business interruption.

  2. To the extent permitted by applicable law, but subject to the exclusive remedy in clause 8(6)(iii)B, VETtrak’s maximum liability for any damages or loss arising out of or in connection with this Agreement, whether in contract, tort or otherwise, will be limited to the amount of the Fees actually paid by you to VETtrak for the Subscription in the 12 month period immediately preceding the event giving rise to such liability.
  3. Clause 9(2) above does not limit VETtrak’s liability:
    1. for personal injury, including sickness and death;
    2. for loss of, or damage to, tangible property;
    3. under clause 10 ; or
    4. for any breach of confidence.
  4. Where you use the Subscription to provide services to a third party, you indemnify VETtrak against any Liability VETtrak may have to the third party in connection with the Subscription.
  5. Both parties understand and agree that the exclusions and limitations of liability in this Agreement allocate the risks of the Subcription and service nonconformity between the parties in a manner commensurate with the Fees, and that the Fees reflect, and have been set in reliance upon, the allocation of risk specified in this clause.
  6. Neither party shall be under any liability for any loss or for any failure to perform any obligation under this Agreement (other than an obligation to pay the Fees) due to any causes beyond its control including industrial disputes of whatever nature, power loss, telecommunications failure, natural disasters and acts of God.

10. INDEMNITY

  1. VETtrak hereby indemnifies you against any amount of loss or damage which VETtrak is legally required to pay to a third party by reason of a court order or settlement Agreement, in respect of a claim that the use of the Subscription by you, infringes any person’s trade mark, copyright or rights in relation to confidential information, or moral rights, provided that:
    1. VETtrak is given prompt notice of the claim;
    2. VETtrak is given immediate and complete control over the defence and settlement of the claim (including the negotiation of any settlement Agreement), and you provide all cooperation and assistance to VETtrak in relation to such defence or settlement as VETtrak reasonably requests;
    3. you do not prejudice in any manner VETtrak’s conduct of such claim; and
    4. the alleged infringement is not based upon the use of the Subscription in a manner prohibited under this Agreement, in a manner for which the Subscription were.
  2. VETtrak shall have no liability for any claim of infringement based on:
    1. the use of the Subscription in a manner not expressly authorised by this Agreement, or in a manner for which the Subscription were not designed;
    2. any modification or enhancement to the Subscription made by a person other than VETtrak;
    3. the compliance by VETtrak with your instructions, directions, specifications or requirements, or any information supplied by you;
    4. the combination, operation or use of the Subscription with software, hardware or other materials not provided by VETtrak.
  3. If a claim of the type described in clause 10(1) is made VETtrak may, at its option and expense, either:
    1. procure for you (at VETtrak’s cost) the right to continue to use the Subscription;
    2. modify the Subscription so that they become non-infringing; or
    3. where neither of those options are in VETtrak’s reasonable opinion, commercially practicable, refund to you an amount equal to 50% of any Fees paid in advance under this Agreement, in which case this Agreement will terminate and you shall, immediately upon receipt from VETtrak of the payment set forth above, have access to the Subscription terminated
  4. This clause 10 states VETtrak’s entire obligation and liability with respect to the infringement of any rights in relation to Confidential Information or any intellectual or industrial property rights (including trade marks, copyright and moral rights) or any other proprietary rights of a third party.
  5. You hereby indemnify VETtrak against any claim for:
    1. alleged infringement of any registered copyright or patent, arising out of the use of the Subscription by Licensee in any manner prohibited by this Agreement; and
    2. any claim related to or arising out of a financial transaction brought by any third party based on the use of the Subscription.

11. SUBSCRIPTION PERIOD AND TERMINATION

  1. Unless earlier terminated in accordance with this Agreement, the Initial Subscription Period will begin on the date of the Order Form and will continue for 12 months after that date.
  2. The Initial Subscription Period will automatically renew for additional periods of 12 months, unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the Initial Subscription Period.
  3. Without limiting any other right or remedy VETtrak may have against you, , VETtrak may terminate this Agreement by written notice to you if:
    1. you commit a material breach of any terms in this Agreement which cannot be remedied;
    2. you breach any term of this Agreement and fail to remedy that breach within 14 days of receiving notice requiring you to do so; or
    3. you become or are deemed to be insolvent under the Corporations Act 2001 (Cth) or any other applicable law, become unable to pay your debts as and when they fall due, have an administrator, receiver and manager, liquidator or other similar officer appointed in respect of you or your assets (or an application is made to a court, not withdrawn within 14 days, for the appointment of such a person) make an assignment for the benefit of your creditors, file for any voluntary bankruptcy, or under provisions of any law of another jurisdiction anything analogous to any of the above happens.
  4. For the purposes of clause 11(3)(i), any breach of clauses 5, 6, or 12 will be deemed to be a “material” breach of this Agreement, and a series of minor breaches which are related or together have a particular effect may be considered together for the purposes of determining whether a “material” breach of this Agreement has occurred.
  5. Without limiting clause 11(3), VETtrak may terminate this agreement by providing no less than 6 months’ prior written notice to you.
  6. If this Agreement is terminated under clause 11(5), VETtrak will not be liable and you will not be entitled to any refund of any part of the Fees previously paid.
  7. If this Agreement is terminated under clause 11(3), VETtrak will refund to you a pro-rata portion of the Subscription Fees previously paid for the terminated agreement taking into account the unexpired Subscription Period for which the Subscription Fees were paid.
  8. Upon termination of this Agreement:
    1. you must not access or use, or attempt to access or use the Subscription, Software, Documentation or Maintenance Services; and
    2. VETtrak must return all your Content and your Applications in its possession or, if directed by you, destroy your Content and your Applications which reside in the Subscription Environment.
  9. For the avoidance of doubt, if this Agreement is terminated for whatever reason, you will not be entitled to a refund of any Initial Set-Up Fee that you have paid.

12. AUDIT

  1. Upon 7 days’ prior written notice, VETtrak may audit your use of the Subscription.
  2. During the conduct of the audit, you must, at your own cost:
    1. cooperate with VETtrak’s auditors; and
    2. provide reasonable assistance and access to any premises, books, records, documents, computer systems, equipment or information required by the auditor to verify your compliance with this Agreement, including, but not limited to, the correct calculation of any fees charged or paid or payable by you under this Agreement.
    3. You must, within 30 days of written notification, pay any additional fees (calculated at VETtrak’s rates at the time of the audit) that are applicable to your use of the Subscription in excess of your rights under this Agreement which may be discovered during VETtrak’s audit.

13. GENERAL

  1. Varying this Agreement: This Agreement may only be varied by written agreement of both parties.
  2. Assignment and novation: You may not assign this Agreement or give or transfer the Software, Documentation or Maintenance Services or an interest in them to another individual or entity. VETtrak may assign this Agreement or VETtrak’s rights or obligations under this Agreement at any time without your consent.
  3. Entire Agreement: This Agreement, together with the Order Form, constitutes the entire Agreement between the parties in connection with its subject matter and supersedes all previous Agreements or understandings between the parties in connection with its subject matter.
  4. Severability: If any part of this Agreement is void or unenforceable, it is severed and will be deemed to be omitted to the extent that it is void or unenforceable, and the remainder of this Agreement will remain in full force and effect.
  5. Waiver: A waiver by either party in respect of a breach of a term of this Agreement by the other party will not be taken to be a waiver in respect of any other breach. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
  6. Governing law and jurisdiction: This Agreement is governed by and will be construed in accordance with the laws of the State of Victoria, Australia, and each party agrees to submit to the non-exclusive jurisdiction of the courts in that State.
  7. Notices: any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in the Order Form. Notice shall be deemed to have been received by any party, and shall be effective:
    1. on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified; or
    2. on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail.
  8. Survival: Termination of this Agreement for any reason will not affect any rights or remedies of either party already accrued under, or in respect of, any breach of, this Agreement or the operation of clauses 5, 6, 7, 8, 9 or 10 of this Agreement.
  9. Further Assurances: Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by law or reasonably requested by another party to give effect to this Agreement.