Software as a Service Agreement - Template, Sample Form Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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SOFTWARE AS A SERVICE AGREEMENT
THIS AGREEMENT IS DATED: ________
BETWEEN THE SOFTWARE PROVIDER ("Software Provider"): ________ (ACN/ABN ________) of ________
AND THE CLIENT ("Client"): ________ (ACN/ABN ________) of ________
(1) BACKGROUND
1.1 The Software Provider owns or is licensed to use all rights in the Product and Services.
1.2 The Client wishes to use the Product and Services.
1.3 The Parties have agreed that the Client and the Authorised Users will have web-based access to the Product and Services, through a server hosted by or on behalf of the Software Provider, on the terms set out in this Agreement.
1.4 In consideration of the mutual promises and obligations set out in this Agreement, the receipt and sufficiency of which are acknowledged, the Parties agree as follows.
(2) DEFINITIONS
In this Agreement, the following definitions apply:
"ACL" means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
"Agreement" means this Software as a Service Agreement.
"Agreement Date" means ________.
"Authorised Users" means any persons named in the "Authorised Users" clause of this Agreement.
"Claims" means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise.
"Client" means ________.
"Client Data" means any Personal Information, data or other information which the Client or an Authorised User submits, or which the Software Provider otherwise acquires, in connection with the use of the Product, Services or Documentation.
"Commencement Date" means ________.
"Confidential Information" has the meaning given in the "Confidential Information" clause of this Agreement.
"Documentation" means any documentation or materials related to the Product, including instructional materials, which the Software Provider provides as part of the Services.
"Fees" means the fees payable by the Client to the Software Provider in accordance with this Agreement.
"GST" means the goods and services tax imposed on a taxable supply in Australia pursuant to the GST Law.
"GST Law" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Losses" means any losses, including but not limited to financial losses, expenses, damages and costs (including legal fees and legal costs) of any nature whatsoever.
"Party" means either the Client or the Software Provider.
"Parties" means the Client and the Software Provider collectively.
"Personal Information" has the same meaning as in the Privacy Act 1988 (Cth).
"Privacy Act" means the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in it.
"Product" means the software product to be provided by the Software Provider to the Client, as described in the "Product and Services" clause of this Agreement.
"Receiving Party", in relation to a piece of Confidential Information, means the Party which receives the Confidential Information from the other Party (whether directly or indirectly).
"Services" means the services to be provided by the Software Provider to the Client, as described in this Agreement.
"Software Provider" means ________.
"Supplying Party", in relation to a piece of Confidential Information, means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly).
"Termination Date" means the earlier of the date this Agreement is terminated by either Party and the date of expiry of this Agreement.
"Term" has the meaning given in the "Term" clause of this Agreement.
"Third Party Materials" has the meaning given in the "Third Party Materials" clause of this Agreement.
"We" or "Us" means the Software Provider, ________.
"Website" means the Software Provider's website located at: ________.
(3) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation apply:
(a) Words referring to one gender include every other gender.
(b) Words in the singular include the plural and vice versa.
(c) A defined word or phrase includes any grammatical variations with a corresponding meaning.
(d) Words referring to a person include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(e) Any reference to time is a reference to time in ________.
(f) Where something must be done on or before a particular date which is not a business day, that thing must be done on or before the next business day.
(g) Any obligation not to do something includes an obligation not to allow that thing to be done.
(h) Headings are for convenience only and do not affect interpretation.
(i) Each Party must, at its own expense, take all reasonable steps to give full effect to this Agreement.
(j) A reference to legislation includes any subordinate, amended or substituted legislation.
(k) A reference to a document includes that document as amended, replaced, supplemented or novated from time to time.
(l) A reference to a Party includes that Party's successors, assigns, legal personal representatives and any person substituted by way of novation.
(m) Any reference to money is a reference to Australian dollars unless otherwise specified.
(4) TERM
(a) This Agreement applies for the following fixed period of time ("Term"): ________, commencing on the Commencement Date.
(b) This Agreement applies throughout the Term, including any renewal or auto-renewal period.
(c) Any auto-renewal terms applicable to this Agreement are as follows: ________.
(5) PRODUCT AND SERVICES
(a) This Agreement relates to the following Product:
________
(b) This Agreement relates to the following Services:
________
(c) Subject to the terms of this Agreement, the Software Provider grants the Client access to the Product and agrees to provide the Services to the Client.
(6) CLIENT RIGHTS AND OBLIGATIONS
(a) Subject to the Client's compliance with this Agreement and payment of all Fees, the Software Provider grants the Client the following rights:
(I) the royalty-free, non-exclusive, non-transferable, worldwide, limited right to access and use the Product and Services for the Client's commercial or personal purposes and those of its Authorised Users;
(II) the right to access and use the Product and Services during the Term, including any renewal or auto-renewal period;
(III) the right to access and use any Documentation related to the Product and Services;
(IV) the right to share the Product, Services and Documentation with Authorised Users strictly in accordance with this Agreement; and
(V) the right to make copies of the Documentation if reasonably required to use the Product and Services in accordance with this Agreement, provided that such copies remain the property of the Software Provider, contain the Software Provider's copyright notices, and are deleted by the Client upon termination of this Agreement.
(b) The Client may only use the Product, Services and Documentation in accordance with this Agreement.
(c) The Client must:
(I) ensure that the Product, Services and Documentation are protected at all times from unauthorised use, damage or destruction;
(II) ensure that the Product, Services and Documentation are not used or accessed by any unauthorised person or entity;
(III) follow all reasonable instructions of the Software Provider in relation to the Product, Services or Documentation;
(IV) comply with any reasonable requests of the Software Provider and provide any information reasonably requested to verify the Client's compliance with this Agreement;
(V) grant the Software Provider (or its agent) any access to the Client's facilities and systems reasonably required to verify compliance with this Agreement; and
(VI) upon termination, promptly delete any copies (full or partial) of the Product, Services or Documentation so that they are permanently removed from the Client's systems and facilities (including any cloud storage) and are irretrievable.
(d) The Client is solely responsible for ensuring it has appropriate equipment, facilities and infrastructure to access the Product and Services, including internet connection, bandwidth, software and hardware.
(e) The Software Provider reserves the right to provide reasonable instructions to the Client regarding use of the Product and Services to ensure they remain available and operate effectively, efficiently and reliably.
(7) CLIENT RESTRICTIONS
(a) The Client must not use the Product, Services or Documentation in any way which does not comply with this Agreement.
(b) The Client must not use the Product, Services or Documentation for any unlawful purpose.
(c) The Client must not use the Product, Services or Documentation in a way which could damage them or harm the Software Provider's business.
(d) The Client must not reverse engineer, decompile, disassemble, extract, modify or otherwise copy the Product, Services or Documentation except as permitted by this Agreement, by the Software Provider's express written approval, or as expressly permitted by law (including any non-excludable right under the Copyright Act 1968 (Cth)).
(e) The Client must not violate the security or functionality of the Product, Services or Documentation by any circumvention of security tools or encryption, unauthorised access, data mining or interference with any data, network, system or other users.
(f) The Client must not sell, assign, licence or transfer its rights under this Agreement to any other person or entity.
(g) Unless otherwise expressly agreed by the Software Provider, the Client must not use the Product, Services or Documentation to gather email addresses, harvest data or Personal Information, or send unsolicited commercial electronic messages in contravention of the Spam Act 2003 (Cth).
(h) The Client must not use the Product, Services or Documentation to violate any intellectual property rights of the Software Provider or any third party.
(i) The Client must not use the Product, Services or Documentation to harass, abuse or threaten any person or entity or otherwise violate any legal or moral rights.
(j) The Client must not use the Product, Services or Documentation to commit any fraud.
(k) The Client must not use the Product, Services or Documentation to distribute, share, upload or publish any obscene or defamatory material, or any material which incites violence, hatred or discrimination.
(l) The Client must not use the Product, Services or Documentation to distribute or disseminate any computer viruses, malware or other harmful software.
(m) The Client must not use the Product, Services or Documentation to engage in any unlawful gambling, sweepstakes or pyramid schemes.
(n) The Client must not use the Product, Services or Documentation to unlawfully gather information about other people or entities.
(o) The Client acknowledges and agrees that it is responsible for the acts and omissions of its Authorised Users, for ensuring that they use the Product, Services and Documentation in accordance with this Agreement, and for monitoring their use accordingly.
(8) AUTHORISED USERS
(a) For the purposes of this Agreement, the following persons are Authorised Users:
________
(b) The Client is responsible for ensuring that any Authorised User uses the Product, Services and Documentation in accordance with this Agreement. Any act or omission by an Authorised User which would, if performed by the Client, constitute a breach of this Agreement is deemed a breach by the Client.
(c) The Client indemnifies and keeps indemnified the Software Provider against any Losses or liabilities, whether direct or indirect, which the Software Provider incurs as a result of any act or omission by an Authorised User in relation to this Agreement, the Product, Services or Documentation.
(9) FEES
(a) In consideration for the Client's use of the Product, Services and Documentation in accordance with this Agreement, the Client must pay the following Fees:
________
(b) The Client's obligation to pay the Fees is subject to the Software Provider providing the Client with a valid tax invoice.
(c) Unless otherwise specified in writing, stated Fees do not include GST or any other taxes, duties, levies or charges, and the Client is responsible for paying any applicable GST or other taxes, duties, levies or charges in addition to the Fees.
(d) The Fees may be updated from time to time. Current Fees are displayed on the Website. By registering for the Product and Services, or renewing its registration, the Client agrees to the current Fees as published on the Website at the time of registration or renewal.
(10) PAYMENT
(a) Fees may be paid via the following payment method ("Payment Method"):
________
(b) The Client must pay any applicable taxes, duties, levies or charges, including GST, at the same time it pays the Fees.
(c) The Fees are payable throughout the Term of this Agreement.
(d) The Client authorises the Software Provider to take payment of the Fees via the Payment Method.
(e) Where the Client renews its registration after updated Fees have been published on the Website, the Client agrees to the updated Fees and authorises payment via the Payment Method.
(f) If the Client fails to pay any Fees or other amounts due, the Software Provider may suspend or terminate the Client's access to the Product and Services.
(g) If any amounts are more than 28 days overdue, the Software Provider may charge interest on the overdue amounts at the rate of ________ per annum, calculated daily, to the extent permitted by law.
(11) QUALITY OF PRODUCT AND SERVICES
(a) The Software Provider must perform the Services and deliver the Product using reasonable care and skill expected of a competent software provider in its field.
(12) AVAILABILITY OF PRODUCT AND SERVICES
(a) The Software Provider will use its best endeavours to maintain the Product and Services so that they are available and operate effectively, efficiently and reliably. However, the Software Provider makes no warranty that the Product or Services will be available on an uninterrupted or error-free basis, except to the extent of any non-excludable guarantee under the ACL.
(b) The Software Provider reserves the right from time to time to make the Product and Services unavailable for maintenance, updates or other scheduled interruptions, as described in the "Interruptions" clause.
(c) The Client acknowledges that from time to time the Product and Services may be unavailable for reasons outside the Software Provider's control, including the actions of a third party, technical problems or the actions of the Client.
(d) The Client agrees to communicate any problems with the Product or Services to the Software Provider as soon as reasonably possible.
(e) The Software Provider accepts no responsibility for any unavailability, malfunction, failure or delay resulting from any act of the Client, any issue with the Client's equipment, facilities or infrastructure, or any alteration, update or modification requested by the Client.
(f) The Client acknowledges that the availability, effectiveness, efficiency and reliability of the Product and Services depends on the Client's equipment, facilities and infrastructure, including internet infrastructure and internal systems, and that the Client is solely responsible for ensuring it has suitable equipment, facilities and infrastructure.
(g) If the Product or Services become unavailable for any reason during the Term, and unless otherwise required by law, the Software Provider may in its sole discretion:
(I) at its own expense, take reasonable steps to rectify the matter, including by way of updates, patches, work-arounds or similar solutions; or
(II) provide the Client with a refund of any Fees paid for the period during which the Product or Services were unavailable.
(13) INTERRUPTIONS
(a) The Software Provider may suspend access to the Product or Services in accordance with this clause.
(b) The Software Provider may suspend access to perform maintenance work.
(c) The Software Provider may suspend access to investigate or deal with a security breach.
(d) The Software Provider may suspend access to make updates or amendments to the Product or Services.
(e) The Software Provider may suspend access to preserve data or its systems.
(f) The Software Provider may suspend access in the event of a system failure or malfunction.
(g) The Software Provider may suspend access if the Client breaches this Agreement.
(h) The Software Provider may suspend access if the Client uses the Product or Services in a manner the Software Provider reasonably considers inappropriate.
(i) Where the Software Provider suspends access in accordance with this clause, the Client will not be entitled to any refund (except as otherwise required by law), and the Software Provider will not be liable to the Client or any of its officers, employees, contractors, agents or representatives, subject to the Client's rights under the ACL.
(14) UPDATES AND MODIFICATIONS
(a) The Software Provider reserves the right to make updates, amendments, modifications or improvements to the Product and Services from time to time, in its sole discretion.
(b) The Client acknowledges and agrees that the Software Provider may, from time to time, modify, add to, or remove features or functionality of the Product and Services, provided that any such change does not materially diminish the core functionality of the Product and Services during the Term.
(c) The Client acknowledges that access to the Product or Services may be interrupted as a result of any update, amendment or modification undertaken in accordance with this clause.
(d) The Software Provider will use its reasonable endeavours to notify the Client in advance of any update, amendment or modification likely to have a material effect on the Client's use of the Product or Services.
(15) MAINTENANCE
(a) The Software Provider will maintain the Product and Services at its own cost.
(b) The Software Provider is responsible for performing such maintenance as is reasonably required to ensure the Product and Services remain available to the Client in accordance with this Agreement.
(c) The Software Provider is responsible for monitoring the Product and Services to ensure they are secure and operate effectively, and for determining whether any maintenance is required.
(d) The Client acknowledges that access to the Product or Services may be interrupted as a result of any maintenance the Software Provider undertakes.
(e) The Software Provider is not responsible for any maintenance of the Client's equipment, facilities or infrastructure, for which the Client is solely responsible.
(16) TECHNICAL SUPPORT
(a) The Software Provider will offer technical support in relation to the Product and Services ("Support").
(b) The Support is available to the Client and any Authorised Users.
(c) The Client and any Authorised Users may access the Support as follows:
________
(17) THIRD PARTY MATERIALS
(a) The Product and Services may involve code, software, infrastructure or other components provided by third parties ("Third Party Materials").
(b) The Software Provider makes no warranty that any Third Party Materials will be available on an uninterrupted or error-free basis, or will be compatible with the Client's equipment, facilities or infrastructure.
(c) The Client is solely responsible for ensuring it has the necessary equipment, facilities and infrastructure to access and use the Third Party Materials.
(d) Where the Client is required to register for the Third Party Materials, it is the Client's sole responsibility to maintain a valid registration.
(e) The Client is solely responsible for complying with any terms and conditions applicable to its use of the Third Party Materials.
(18) EXTRA SERVICES
(a) The Software Provider may, upon request by the Client, be available to provide the following extra services ("Extra Services"):
________
(b) Unless otherwise agreed in writing, any Extra Services will be subject to a separate written agreement between the Parties.
(c) Unless otherwise agreed in writing, any Extra Services will incur additional fees in such amounts as communicated by the Software Provider at the time the Extra Services are provided.
(d) The Client agrees that the Software Provider may take payment for any Extra Services via the Payment Method used in connection with this Agreement.
(19) CLIENT ACKNOWLEDGEMENTS
The Client acknowledges and agrees that:
(a) the Client uses the Product and Services at its own risk;
(b) it is the Client's sole responsibility to ensure the Product and Services suit its requirements and purposes;
(c) it is the Client's sole responsibility to ensure the Product and Services are compatible with its equipment, facilities and infrastructure;
(d) it is the Client's sole responsibility to ensure its intended use of the Product and Services complies with all applicable laws and regulations;
(e) the Client is not relying on any representation made by or on behalf of the Software Provider except those expressly set out in this Agreement;
(f) where the Software Provider has made any representation not set out in this Agreement, the Client has had an opportunity to independently verify the information contained in that representation;
(g) in providing the Product and Services, the Software Provider has not given any professional advice and no fiduciary relationship has been created;
(h) subject to the ACL, the Software Provider will not be liable for any failure of the Product or Services to deliver an outcome, result or function which is not set out in the Documentation;
(i) subject to the ACL, the Software Provider will not be liable for any failure of the Product or Services to deliver an outcome, result or function reasonably attributable to:
(I) the Client's use of an outdated version of the Product or Services;
(II) the Client's failure to follow the Software Provider's directions;
(III) a modification or update not performed by the Software Provider;
(IV) the Client's use contrary to the Software Provider's directions;
(V) the Client's use contrary to the Documentation;
(VI) the Client's use contrary to this Agreement;
(VII) the Client's use with other software, equipment, facilities or infrastructure without the Software Provider's consent; or
(VIII) any errors or omissions in the data, inputs or other information submitted by the Client;
(j) it is the Client's sole responsibility to back up any data and information submitted in connection with the Product or Services, and the Software Provider accepts no responsibility (to the extent permitted by law) for any loss or corruption of such data or information;
(k) it is the Client's sole responsibility to interpret, analyse and draw its own conclusions from any results, data, outputs or information obtained from the Product or Services; and
(l) this clause survives the termination, expiration or completion of this Agreement.
(20) SUBCONTRACTING AND ASSIGNMENT
(a) The Software Provider may subcontract or assign any of its rights or obligations under this Agreement.
(b) The Client may not, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Software Provider.
(21) CONFIDENTIAL INFORMATION
(I) information of whatever nature obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observation during visits or demonstrations;
(II) information relating to the business activities, practices and finances of the Supplying Party;
(III) any evaluation material, design work, technologies, technological ideas or strategies, strategic plans, innovations, creative plans, concepts and other plans or ideas developed by or for the Supplying Party;
(IV) any information derived from information within this definition;
(V) any copy of any Confidential Information; and
(VI) the fact that discussions are taking place between the Parties,
but does not include information which:
(VII) was known or in the possession of the Receiving Party before it was provided by the Supplying Party;
(VIII) is or becomes publicly available through no fault of the Receiving Party;
(IX) is provided to the Receiving Party without restriction by a third party who did not breach any confidentiality obligation;
(X) is provided by the Supplying Party and marked "Non Confidential"; or
(XI) is required by law or regulation to be disclosed, in which case the exception applies only to the minimum necessary and provided the Supplying Party is first consulted to establish whether and how far the disclosure may be prevented or restricted.
(c) If there is any doubt as to whether information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
(d) This clause survives the termination, expiration or completion of this Agreement.
(22) INTELLECTUAL PROPERTY
(a) The Software Provider must ensure that the Product and Services will not infringe the intellectual property rights or any other right of any third party.
(b) The Software Provider owns all intellectual property rights in the Intellectual Property.
(c) The Client acknowledges and agrees that the Software Provider owns all intellectual property rights in the Intellectual Property.
(d) Nothing in this Agreement transfers or assigns any intellectual property rights in the Intellectual Property to the Client.
(e) Except for the specific rights to use the Intellectual Property granted to the Client under this Agreement, the Client has no other rights to use, distribute or share the Intellectual Property.
(f) The Client must not do anything, or allow anything to be done by its officers, employees, contractors, agents or representatives, which undermines, diminishes, harms or contests the Software Provider's intellectual property rights in the Intellectual Property.
(g) The Client must follow all reasonable directions of the Software Provider in relation to the Intellectual Property, including in relation to enforcement action against infringers.
(h) Where the Client discovers any infringement of the Software Provider's intellectual property rights, the Client must immediately notify the Software Provider.
(i) This clause survives the termination, expiration or completion of this Agreement.
(23) THIRD PARTY LINKS
(a) You acknowledge that We may from time to time include links or references to other websites, content or materials ("Third Party Links"), none of which are controlled by Us.
(b) You acknowledge that Third Party Links are provided for Your information only and that We make no representation, warranty or guarantee as to the accuracy, completeness, performance, reliability, timeliness, quality or suitability for a particular purpose of any Third Party Link. We do not endorse, approve or support any Third Party Link. You use Third Party Links at Your own risk.
(24) AFFILIATE MARKETING AND ADVERTISING
(a) Through the Website, Product and Services, the Software Provider may engage in affiliate marketing whereby it receives a percentage of sales proceeds or a commission on sales of a third party's goods or services sold via the Product or Website.
(b) Through the Website, Product and Services, the Software Provider may accept advertising or sponsorships whereby third parties pay or otherwise compensate it to advertise via the Website, Product or Services.
(25) DATA AND PRIVACY
(a) By using the Product, Services or Documentation, the Client may provide the Software Provider with Client Data.
(b) Each Party must comply with its obligations under the Privacy Act and the Australian Privacy Principles in relation to any Personal Information handled in connection with this Agreement.
(c) By using the Product, Services or Documentation, the Client authorises the Software Provider to collect, use and disclose the Client Data, in Australia and any other country where the Software Provider or its service providers operate, for the purpose of performing its obligations under this Agreement.
(d) Where Personal Information may be disclosed to or stored by overseas recipients, the location(s) of such recipients is/are: ________.
(e) For further information about how the Software Provider collects, uses, stores and discloses the Client Data, see the Software Provider's Privacy Policy available at: ________.
(f) We use the following system for hosting in relation to the Product and Services: ________.
(g) It is the Client's responsibility to ensure the Software Provider's hosting system meets the Client's requirements.
(h) Each Party must notify the other as soon as practicable of any actual or suspected eligible data breach (within the meaning of Part IIIC of the Privacy Act) of which it becomes aware in connection with this Agreement, and the Parties must cooperate in good faith to meet any obligations under the Notifiable Data Breaches scheme.
(26) YOUR MANDATORY RIGHTS UNDER THE ACL
(a) This clause sets out certain rights which you (the Client) may have under the Australian Consumer Law ("ACL"), where you deal as a consumer within the meaning of the ACL.
(b) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(I) to cancel your service contract with us; and
(II) to a refund for the unused portion, or to compensation for its reduced value.
(c) You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(27) LIMITATION OF LIABILITY
(a) The Client may have certain rights under the ACL, or under other similar or related consumer protection laws.
(b) The ACL (or any other similar or related consumer protection laws) may give the Client certain rights, warranties, guarantees and remedies regarding the provision of products and services by the Software Provider which cannot be excluded, restricted or modified ("Statutory Rights"). Nothing in this Agreement excludes, restricts or modifies any such Statutory Rights.
(c) The Software Provider's liability to the Client is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Agreement.
(d) To the maximum extent permitted by law, the Software Provider excludes all conditions and warranties implied by custom, law or statute, except for the Client's Statutory Rights, and expressly disclaims all warranties of any kind to the extent permitted by law.
(e) The Client agrees that it is solely responsible for determining whether the Product and Services are fit for its purpose.
(f) Except in cases of death or personal injury caused by the Software Provider's negligence, and subject to the Client's Statutory Rights, the Software Provider's liability in contract, tort or otherwise arising in connection with this Agreement or its performance shall be limited to the Fees paid by the Client to the Software Provider under this Agreement.
(g) To the extent lawful, the Software Provider shall not be liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, cost or expense of an indirect or consequential nature, including without limitation any economic loss, data loss, loss of goodwill, or loss of turnover, profits or business.
(h) Where the Client's Statutory Rights apply and the liability may lawfully be limited, the Software Provider's liability in respect of any claim is limited, at the Software Provider's option, to:
(I) the supply of the Product and/or Services again; or
(II) the payment of the cost of having the Product and/or Services supplied again.
(i) The Software Provider's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
(j) Without limiting any other provision of this Agreement and subject to the Client's Statutory Rights, the Software Provider will not be liable to the Client for any loss or damage (including consequential loss or damage), whether direct or indirect, arising as a result of:
(I) any suspension of access to the Product or Services in accordance with this Agreement;
(II) the Client's use of the Product or Services;
(III) any defect, error, malfunction, loss or delay in the Client's access to the Product or Services or related information;
(IV) any such defect, error, malfunction, loss or delay caused or influenced by a third party;
(V) any such defect, error, malfunction, loss or delay related to the Client's equipment, facilities or infrastructure; or
(VI) any such defect, error, malfunction, loss or delay related to third party equipment, facilities or infrastructure.
(k) The Client is solely responsible for ensuring its compliance with all applicable laws and regulations.
(l) This clause survives the termination, expiration or completion of this Agreement.
(28) INDEMNITY
(a) Except for any payment in settlement from any applicable insurance policy, and to the extent permitted by law, the Client indemnifies, keeps indemnified and holds harmless the Software Provider and its employees, agents, officers, representatives, affiliates and permitted successors and assigns against any and all demands, Claims, Losses, injuries, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs and any other costs which may arise out of:
(I) a breach by the Client of this Agreement;
(II) the Client's wilful, unlawful or negligent act or omission; or
(III) any act or omission of any of the Client's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement.
(b) The Client indemnifies, keeps indemnified and holds harmless the Software Provider and its employees, agents, officers, representatives, affiliates and permitted successors and assigns against any third party Claims for any Losses, injuries, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs and any other costs which may arise out of:
(I) a breach by the Client of this Agreement;
(II) the Client's wilful, unlawful or negligent act or omission; or
(III) any act or omission of any of the Client's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement.
(c) The Client shall not be liable under this indemnity where a court of competent jurisdiction, by final judgment, holds that the relevant loss, damage or liability resulted from the gross negligence, wilful misconduct or bad faith of the Software Provider or any of its employees, agents, officers, representatives, affiliates, or permitted successors or assigns. Each indemnity in this clause is reduced proportionally to the extent that any act or omission of the Software Provider contributed to the relevant loss.
(d) This clause survives the termination, expiration or completion of this Agreement.
(29) TERMINATION
(a) Either Party may terminate this Agreement with immediate effect by written notice in the following circumstances:
(I) the other Party breaches this Agreement and the breach cannot be remedied;
(II) the other Party breaches this Agreement in a way capable of remedy but does not remedy the breach within 28 days of being notified;
(III) the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or perform;
(IV) the other Party or its employees or agents engages in conduct prejudicial to the business of the other, or a conflict or potential conflict of interest arises between the Parties;
(V) the other Party takes steps to cease carrying on its business;
(VI) the other Party takes steps to enter into an arrangement with its creditors;
(VII) a mortgagee of the other Party takes steps to dispose of or enter into possession of any of that Party's assets or business; or
(VIII) any steps are taken to appoint a liquidator, provisional liquidator, administrator, receiver, receiver and manager or trustee in bankruptcy for the whole or any part of the other Party's business.
(b) Where the Fees are overdue by 14 days or more, the Software Provider may terminate this Agreement with immediate effect.
(c) The Parties acknowledge that certain rights to terminate or take action by reason of an insolvency-related event may be subject to the stay provisions in Part 5.1 and Division 6A of Part 5.3A of the Corporations Act 2001 (Cth).
(30) EFFECT OF TERMINATION
(a) Upon termination or expiration of this Agreement:
(I) any unpaid Fees relating to the Client's access to the Product and Services prior to the Termination Date become immediately due and payable;
(II) the Client must immediately stop using the Product, Services and Documentation;
(III) the Client must immediately stop using the Intellectual Property;
(IV) the Client will no longer be entitled to access or use the Product, Services, Documentation or Intellectual Property;
(V) the Client must immediately return any copies of the Product, Services and Documentation to the Software Provider, destroy them, or follow any other reasonable direction of the Software Provider in relation to those copies;
(VI) the Software Provider will terminate the Client's access to the Product, Services and Documentation; and
(VII) any data, inputs or other information submitted by the Client may be permanently deleted (so the Client should ensure it has backups of any important data, inputs or information), subject to any retention required by law.
(b) Any termination under this clause does not affect the accrued rights and liabilities of either Party under this Agreement or at law and is without prejudice to any rights or remedies to which either Party may be entitled.
(c) Any part of this Agreement intended to continue after, or to come into force at or after, termination is not affected by this clause.
(d) This clause survives the termination, expiration or completion of this Agreement.
(31) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement required or permitted to be given in writing will be deemed validly given to the Client if delivered to the following address:
________
(b) Any notice, demand, request or other correspondence in relation to this Agreement required or permitted to be given in writing will be deemed validly given to the Software Provider if delivered to the following address:
________
(c) Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing. After such nomination, any notice will be deemed validly given if delivered to the Nominating Party at the New Address.
(32) WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification required under this Agreement to be provided in writing from one Party to the other:
(I) such notice is properly given if given to the other Party:
(A) by email to an email address the other Party has nominated, acknowledged or used in connection with the Services or this Agreement;
(B) by facsimile to a facsimile number the other Party has nominated, acknowledged or used in connection with the Services or this Agreement; or
(C) by post to a postal address the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
(II) such notice is taken to be received:
(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address;
(B) if sent by facsimile, at the time of correct and complete transmission shown by the sending machine;
(C) if sent by prepaid post within Australia, five (5) business days after the date of posting; and
(D) if sent by prepaid post to or from an address outside Australia, twenty-one (21) days after the date of posting.
(33) DISPUTE RESOLUTION
(a) If a dispute arises out of or in connection with this Agreement, a Party must not commence court proceedings (except for urgent interlocutory relief) unless it has first complied with this clause.
(b) The Party claiming the dispute must give written notice to the other Party setting out the nature of the dispute, and the Parties must use reasonable endeavours to resolve the dispute by good faith negotiation within 14 days of the notice.
(c) If the dispute is not resolved within that period, the Parties agree to refer the dispute to mediation administered by ________, with the mediation to be conducted in ________, before either Party commences court proceedings.
(34) GENERAL PROVISIONS
(a) GOVERNING LAW: This Agreement is governed by the laws of ________ and the Commonwealth of Australia. Each Party submits to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from them.
(b) LANGUAGE: All communications and notices given pursuant to this Agreement shall be in the English language.
(c) CURRENCY: Unless otherwise specified, all monetary amounts in this Agreement are in Australian Dollars (AUD).
(d) RIGHTS, REMEDIES AND POWERS: Unless expressly provided, any rights, remedies or powers acquired by a Party under this Agreement are cumulative and apply in addition to any other rights, remedies or powers it may have. Nothing in this Agreement reduces, extinguishes, postpones, restricts or otherwise limits any right, remedy or power of a Party except as expressly provided.
(e) SURVIVAL OF OBLIGATIONS: Notwithstanding any other provision, on the termination, expiration or completion of this Agreement, any provision which by its nature would be expected to survive shall remain in full force and effect, including any provision explicitly stated to survive.
(f) NO WAIVER: No power or right under this Agreement is waived by any act or acquiescence of either Party. A power or right may only be waived in writing signed by the Party waiving it. No waiver constitutes a waiver of any other power or right, or of the same power or right on a future date. Failure to enforce any term does not constitute waiver of that or any other term.
(g) SEVERABILITY: If any provision of this Agreement is held unenforceable, this Agreement is deemed amended to the extent necessary to render that provision and the rest of the Agreement valid and enforceable. If a court declines to so amend, the invalidity or unenforceability of any provision does not affect the validity or enforceability of the remaining terms, which shall be enforced as if the offending provision had not been included.
(h) ENTIRE AGREEMENT: In relation to its subject matter, this Agreement represents the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral. No warranties, representations, conditions or collateral agreements affect this Agreement except as expressly provided. Each Party confirms that, in entering into this Agreement, it did not rely on any representation, warranty or provision except those expressly provided.
(i) COUNTERPARTS: This Agreement may be executed in counterparts, all of which together constitute one agreement. The Parties agree that this Agreement may be signed electronically. If the execution dates differ, this Agreement is effective as of the later date.
(j) FORCE MAJEURE: Neither Party is liable to the other for any failure to perform (other than an obligation to pay money) due to causes beyond its reasonable control, including acts of God, acts of civil or military authorities, riots, embargoes, pandemics, epidemics, natural disasters, labour or transportation disputes, and other unforeseen circumstances.
(k) FURTHER ASSURANCES: Each Party must, and must ensure that its directors, employees, officers, agents, representatives and contractors, do all things and sign, execute and deliver all documents, agreements and instruments reasonably required to give effect to this Agreement and to the rights and obligations of the Parties.
(35) CONTACT US
You can contact us about this Agreement using the following details:
________
EXECUTED AS AN AGREEMENT
Signed for and on behalf of ________ in accordance with section 127(1) of the Corporations Act 2001 (Cth) by being signed by ________ and ________, being two directors (or a director and a company secretary):
..................................................
________, Director
Date: ________
..................................................
________, Director / Company Secretary
Date: ________
Signed for and on behalf of ________ in accordance with section 127(1) of the Corporations Act 2001 (Cth) by being signed by ________ and ________, being two directors (or a director and a company secretary):
..................................................
________, Director
Date: ________
..................................................
________, Director / Company Secretary
Date: ________
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