For use of the GovConnex Platform.
This licence agreement is between GovConnex Pty Ltd (ABN 33 629 740 932) (the Licensor) (‘us’, ‘we’ and ‘our’) and the individual or company that GovConnex has agreed to supply the online and/or digital services and materials (the Licensee) (‘you’ and ‘your’).
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The meanings of the terms used in this Agreement are set out below:
Access Hours means 24 hours a day, 7 days a week, 52 weeks a year but does not include Planned Downtime.
Account Administrator means an individual designated by the Customer within the GovConnex application who can add and remove users, reset user passwords and has the authority to manage the Customer’s account.
Agreement means this Agreement, the Order Form and any schedules or annexures it includes as amended from time to time.
Authorised User means the employees and other persons authorised by the Customer to use the Platform, up to the maximum number specified in the Services & Fees section of the Order Form.
Authorised User Material means any Material provided by the Customer or the Authorised User which relates to the Authorised User personally and may include information which is Personal Information which may include for example, contact details, login information and Authorised User specific usage data.
Business Day means a day on which banks are open for business in the city of operation excluding a Saturday, Sunday or public holiday in that city.
Business Hours means the hours between 9 am and 5 pm on Business Days.
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.
Commencement Date has the meaning given in Item 1 of the Key Terms.
Complaining Party has the meaning given to that term in clause 17.1.
Confidential Information means, in relation to a party, information that:
(a) is by its nature confidential;
(b) the party receiving the information knows or ought to know is confidential; or
(c) is designated by a party as confidential, and includes:
(i) information which has any actual or potential commercial value in respect of the business of a party or is comprised in or relating to any Intellectual Property Rights of a party;
(ii) information relating to the financial position of a party, including information relating to the assets or liabilities of the party and any other matter that does or may affect the financial position or reputation of the party;
(iii) information relating to the internal management and structure, policies and strategies of a party; and
(iv) Personal Information or any other information relating to a party's employees, subcontractors, agents, clients or suppliers.
Consequential Loss means any Loss suffered or incurred by GovConnex which does not arise naturally (that is, according to the usual course of things).
Copyright Law means Copyright Act 1968 (Cth).
Corporations Law means the Corporations Act 2001 (Cth).
Customer Data means all data, files, works and materials uploaded to or stored on the Platform by the Customer (or Authorised Users), transmitted by the Platform at the instigation of the Customer (or Authorised Users), or supplied by the Customer (or Authorised Users) to GovConnex for uploading to, transmission by or storage on the Platform.
Customer Material means any Material provided by the Customer to GovConnex, which relate to the Customer, the Authorised Users and the Authorised User Material.
Customer Representative means the person identified as such in the Customer Details section of the order form, and users identified as Account Administrators in the GovConnex app.
Defaulting Party has the meaning given to that term in clause 15.3.
Documentation means operating manuals, training materials and associated documentation, which is to be made available in hard copy or online to the Customer by GovConnex under this Agreement.
Extension Term means the 12 month extension of this Agreement.
Fees means the fees or charges payable by the Customer for the Platform in accordance with the Order Form.
Force Majeure Event means events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(f) interruption of networks or third-party services (including Amazon Web Services); and
(g) the act, decrees, legislation, regulations or restrictions of any Government Agency,
however, does not include a lack of funds.
GovConnex Material means any Material:
(a) the Intellectual Property Rights of which are owned or licensed by GovConnex prior to the Commencement Date; or
(b) which are created, developed or acquired by GovConnex on or after the Commencement Date,
and which is incorporated in, or necessarily used in providing, the Platform to the Customer, or otherwise made available to the Customer, under this Agreement including any of GovConnex’s software, methodologies, processes, tools, tool-kits, routines, designs, source code, templates, formats, strategies, content management tools or procedures and any customisations or modifications to the Platform.
GST means the tax payable on taxable supplies under the GST Law if applicable in the country of operation.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax, and includes any subordinate legislation in respect of those Acts.
Insolvency Event means, in the context of a party:
(a) a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Law) or similar official is appointed, or steps are taken for such appointment, over any of the equipment or undertaking of the person;
(b) the party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Law or is presumed to be insolvent under the Corporations Law;
(c) the party ceases or threatens to cease to carry on business; or
(d) an application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights means any industrial and intellectual property rights throughout the world and for the duration of the rights, including:
(a) any patents, copyright including future copyright, registered or unregistered trademarks or service marks, trade names, brand names, registered or unregistered designs, commercial names, circuit layouts, database rights;
(b) any inventions, discoveries, processes, methods, trade secrets, know how, computer software, confidential information and scientific, technical and product information;
(c) the right to apply for any industrial and intellectual property rights; and
(d) any other similar or analogous rights and any intellectual or industrial rights whether now existing or which come into existence in the future.
Invoice Frequency means the intervals in which invoices will be issued by GovConnex to the Customer as specified in Item 3 of the Key Terms.
Loss means any loss, damage, claim, action, liability, cost, charge, expense, outgoing or payment.
Material means any material, information or knowledge, regardless of form, including without limitation any data, text, chart, graphics, reports, calculations, statistics, software, source code, object code, designs, templates, formats, tools, methodologies, strategies, processes, procedures or routines.
Order Form means the document provided by GovConnex setting out the key terms of the supply of Platform to the Customer annexed to this Agreement.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Personnel means, in relation to a party, that party’s employees, agents, consultants and subcontractors.
Planned Downtime means downtime of the Platform as a result of an Update or scheduled maintenance of the Platform, but excludes maintenance required to remedy incidents notified by the Customer or resulting from a breach of this Agreement.
Platform means computer software and each of the Subscription Inclusions, together with any enhancement, modification, Update of that program.
Privacy Laws means:
(a) the Privacy Act 1988 (Cth); and
(b) any other legislation relating to the collection, use, disclosure, storage or granting of access
(c) rights to Personal Information.
Related Bodies Corporate has the meaning given to that term in the Corporations Law.
Report means a written document generated by the Platform.
Subscription Inclusions means the services to be delivered to the Customer via the Platform, as specified in the Order Form or as amended in writing, by agreement, from time to time as specified in the Services & Fees section of the Order Form.
Support Services includes technical support for use of the Platform, troubleshooting and rectification of all incidents notified by the Customer, but excludes technical issues relating to the Customer’s website.
Tax Invoice has the same meaning as in the GST Law.
Term means the period this Agreement as specified in Item 2 of the Key Terms.
Update means software which has been provided primarily to provide an extension, alteration, improvement or additional functionality to the Platform.
1.2 Interpretation
In this Agreement:
(a) headings and bold type are for convenience only and do not affect interpretation;
(b) the singular includes the plural and the plural includes the singular.
(c) words importing the singular include the plural and vice versa;
(d) a reference to anything (including, but not limited to, any right) includes a part of that thing but nothing in this clause 1.2(d) implies that performance of part of an obligation constitutes performance of the obligation;
(e) a reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this Agreement;
(f) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them;
(g) anything specified after the word “including” or a similar expression does not limit what else is included;
(h) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
(i) a reference to a person includes that person’s successors and legal personal representatives; and
(j) no provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
2. AGREEMENT
2.1 GovConnex has offered to provide to the Customer the Platform in consideration for the Fee on the terms and conditions contained in this Agreement.
2.2 The Customer has accepted GovConnex’s offer by signing this Agreement.
3. TERM
3.1 This Agreement commences on the Commencement Date and continues in full force and effect for the initial Term unless terminated earlier under clause 15 or extended under clause 3.2.
3.2 Unless the Customer provides GovConnex with written notice of termination in accordance with clause 15 prior to the expiry of the Term or the current Extension Term (as applicable), each Term will automatically renew at the expiry of the Term or Extension Term (as applicable) for a further successive Extension Term.
3.3 If the Term is automatically renewed in accordance with clause 3.2, the Customer acknowledges and expressly authorises GovConnex to charge the Fees for the Extension Term.
4. DELIVERY
4.1 The Platform will be deemed delivered on the date that GovConnex provides the Customer with system access enabling use of the Platform.
4.2 Upon delivery of the Platform, the Customer will be responsible for ensuring that the Platform is used only in accordance with this Agreement.
5. LICENCE AND LICENCE CONDITIONS
5.1 Each part of Platform supplied pursuant to an Order will be subject to the licence terms set out in this clause.
5.2 Subject to clause 6.2 and receipt of payment of the Fees, GovConnex grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to use the Platform and the Documentation for the Customer’s business purposes (Permitted Purpose) for the Term or Extension Term (as applicable). The Customer may allow its Authorised Users to use and access the Platform and Documentation for the Permitted Purpose provided that the Customer must ensure, and is responsible for, its Authorised Users compliance with the terms of this Agreement.
5.3 The Customer must ensure that its Authorised Users agree to GovConnex’s terms of use and service and acknowledges and agrees that a breach of GovConnex’s terms of use will be deemed to be a breach by the Customer.
5.4 The licence commences upon delivery and will continue for the Term and any subsequent Extension Terms.
5.5 The Customer acknowledges that it has no right, title or interest in the Platform except as set out in clause 5.2.
6. USE OF THE PLATFORM
6.1 Permitted Use
The parties acknowledge and agree that the Customer is expressly permitted to:
(a) use the Platform only in accordance with the terms and conditions set out in this Agreement; and
(b) download and share Reports.
6.2 Restrictions on use
Subject to clause 6.1 and except as otherwise permitted under this Agreement, the Customer must, and must ensure that its Authorised Users do not directly or indirectly:
(a) copy, reproduce, lease, sub-licence, rent, licence, sell or otherwise make available or transfer all or any part of the Platform to any other person;
(b) make available to any third party any analysis of the results of operation of the Platform, including benchmarking results, without the prior written consent of GovConnex;
(c) provide services relating to the Platform to third parties including business process outsourcing services, service bureau services or training services and excluding Authorised Users;
(d) alter, customise, modify or create derivative works of the Platform;
(e) remove, obliterate or alter any proprietary notice on the Platform;
(f) infringe any third party’s rights, including as to confidentiality, privacy, Intellectual Property Rights, other proprietary rights or rights of publicity;
(g) use the Platform to access any data other than the Customer Material;
(h) violate or attempt to violate the security of the Platform;
(i) disrupt or interfere with the Platform, or any services, system resources, accounts, servers or networks connected to or accessible through the Platform;
(j) disrupt or interfere with any other user’s enjoyment of the Platform;
(k) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform;
(l) use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or any transaction or process being conducted on or through it;
(m) use any robot, spider, other automatic device or manual process to monitor, copy or extract any web pages on the Platform, or any of the content contained within, without GovConnex’s prior written permission;
(n) use the Platform to breach any laws, including any Privacy Laws, which are applicable to the Customer;
(o) attempt to reverse assemble, reverse compile or otherwise reverse engineer the Platform or any part of the Platform, except as expressly permitted by part 3 division 4A of the Copyright Law;
(p) modify the whole or any part of the Platform or combine or incorporate the whole or any part of the Platform in any other program or system without the prior consent in writing of GovConnex. If the Platform is modified under this clause 6.2(o):
(i) the modifications must, unless GovConnex directs otherwise, be made in accordance with a written proposal submitted by the Customer to GovConnex;
(ii) the Customer will fully indemnify and hold harmless GovConnex against any liability incurred if the modifications infringe the Intellectual Property Rights of a third person;
(iii) the Platform as modified shall remain the property of GovConnex; and
(iv) this Agreement will continue to apply to the Platform as modified.
6.3 Customer Responsibilities
Other than as set out in this Agreement, the Customer:
(a) is solely responsible for providing all hardware, internet connectivity, software (including browsers) and appropriate internet bandwidth that may be required for proper use of the Platform;
(b) on an ongoing basis throughout the Term, co-operate with GovConnex and its representatives in relation to GovConnex’s provision of the Platform and Support Services to the Customer;
(c) is responsible for protecting the Platform at all times from unauthorised access, use or damage;
(d) must keep its Authorised User passwords to the Platform confidential, and must not transfer or disclose such Authorised User passwords to any person, except as permitted by this Agreement;
(e) must notify GovConnex immediately if it becomes aware that the confidentiality of its Authorised User passwords has or may have been compromised in any way (including by disclosure to any third party);
(f) is solely responsible for inputting the Customer Material and the Authorised User Material, the accuracy of the Customer Material and Authorised User Material, and the content of the Customer Material input processed through the Platform;
(g) must ensure that the Customer Material is provided in a format compatible with the Platform;
(h) must obtain the consent of all relevant third parties in relation to the collection, use and storage of the Customer Material and Authorised User Material and any information in relation to, or owned by, the third party which the Customer enters into the Platform, and to the transfer to, and storage of, the Customer Material by GovConnex outside Australia. The Customer must provide GovConnex with evidence of all consents upon the reasonable notice of GovConnex; and
(i) must ensure that the Customer Material does not contain any harmful or deleterious software viruses or other programming routines or codes designed to interrupt, destroy or limit the functionality of the Platform.
6.4 Customer acknowledgment
The Customer acknowledges that GovConnex may, subject to its obligations under clause 10 and in its discretion:
(a) access Customer Material as required by law;
(b) access the Customer Material for purposes relating to the maintenance of the Platform;
(c) use, communicate, display, store and translate the Customer Material as required to provide the Platform to the Customer and the Authorised Users; and
(d) use any information recorded in the Platform (excluding any Personal Information) for evaluation purposes and to improve the Platform.
6.5 Management of Authorised Users
(a) GovConnex shall create profiles in the Platform for each of its Authorised Users; and
(b) The Customer must obtain all relevant consents from all Authorised Users including agreement to any terms of use, terms of service, or applicable privacy policies which may be in place from time-to-time and updated in GovConnex’s sole discretion.
7. AVAILABILITY OF THE PLATFORM AND SUPPORT SERVICES
7.1 Availability
GovConnex shall use its best endeavours to:
(a) ensure that the Platform is available for use by the Customer at least 99.7% during all Access Hours; and
(b) provide the Customer Support Services during Business Hours.
7.2 Maintenance of the Platform
(a) The Customer acknowledges and agrees that GovConnex may, without prior notice to the Customer, carry out scheduled maintenance (including Updates) of the Platform from time-to-time.
(b) GovConnex will have no liability to the Customer for any Loss suffered or incurred by the Customer in connection with the unavailability of the Platform during Planned Downtime of the Platform.
8. FEES
8.1 Payment of Fees and currency
(a) In consideration for GovConnex providing the Platform, the Customer must pay GovConnex the Fees in accordance with the Order Form and this Agreement.
(b) Unless otherwise specified, all Fees must be paid in Australian dollars.
8.2 Changing Fees
(a) Fees for the Platform will be fixed for the Term in line with the Order Form.
(b) GovConnex may at its sole discretion modify the Fees for the Platform in respect of an Extension Term by giving the Customer written notice of not less than the three months, in advance of the expiration of the then current Term or Extension Term (as applicable).
8.3 Invoices and payment
(a) GovConnex will invoice the Customer for the Fees at the Invoice Frequency for the Term and each Extension Term.
(b) The Customer must make payment of the Fees within 14 days of receipt of a properly rendered Tax Invoice without set-off or counter-claim in the manner agreed between GovConnex and the Customer.
(c) GovConnex does not access or store payment method information and merely uses payment gateways or merchant facilities for the processing of payments. In such instances, the Customer is bound by the terms of service of the payment gateway or merchant facility.
(d) All paid Fees are non-refundable unless otherwise provided for at law.
8.4 Late payment
(a) If payment is not made in accordance with clause 8.3, the Customer will be liable to pay GovConnex interest on the outstanding balance from the due date of invoice until the date of payment at the rate of 1.5% per calendar month or part thereof.
(b) GovConnex will notify the Customer if the supplied credit card is declined or fails for any reason.
(c) If the Customer fails to remedy the payment failure within 7 days of this notice GovConnex may disable access to the Platform.
8.5 Goods and Services Tax (If applicable)
(a) Unless otherwise expressly stated, any fees and other payments required to be made under this Agreement are deemed to be exclusive of GST.
(b) In the event that a supply under this Agreement is a taxable supply within the meaning of the GST Law:
(i) GovConnex may recover from the recipient of the supply an amount equal to the GST payable on the supply (GST Amount); and
(ii) the recipient must pay the GST Amount to GovConnex on the date the consideration for the supply is due for payment, or in exchange for a valid Tax Invoice.
(c) The parties agree that each party shall be solely liable for their respective GST liabilities.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges that GovConnex and its licensors owns all Intellectual Property Rights in and to the GovConnex Material.
9.2 Subject to the payment of all outstanding Fees by the Customer, GovConnex grants to the Customer a non-exclusive, personal, non-transferable, non-sublicensable, revocable and royalty free licence to use GovConnex Material solely for the Term to the limited extent necessary for the Customer to enjoy the benefit of the Platform for the Customer’s internal business purposes.
9.3 The licence granted to the Customer under clause 9.2 does not grant the Customer with the right to republish any content contained in the Platform.
9.4 GovConnex acknowledges that, as between the parties, GovConnex has no Intellectual Property Rights in and to the Customer Material other than as set out in clauses 9.5 and 9.6.
9.5 The Customer hereby grants GovConnex a sub-licensable, revocable, royalty-free, worldwide, non-transferable, non-exclusive licence for the Term and each Extension Term to use, communicate, display, copy, reproduce and store the Customer Materials for the purposes of providing the Platform.
9.6 As and between the parties, any Customer Data developed or created in the provision of the Platform vests immediately upon creation in GovConnex and GovConnex may use, communicate, display, copy, reproduce, store, distribute including, publish, export, sell, adapt, edit and translate the Customer Data as non-identifiable data in aggregated and blinded formats where the Customer Data provides no identifying, referencing or implication of an association with the Customer, for benchmarking, research, marketing, analysis, analysis by third parties, surveys, reports and studies and to measure any metrics associated with the Customer and the Customer’s use of the Platform either independently or against other customers.
9.7 The Customer represents and warrants that:
(a) the use of the Customer Material by GovConnex in accordance with this Agreement will not infringe the rights, including Intellectual Property Rights, of any person or give rise to any liability to make royalty or other payments to a third party.
(b) it has all authorisations from Authorised Users and any other third party it requires to grant the licence granted to GovConnex under clause 9.5 and 9.6.
10. CONFIDENTIALITY
10.1 Confidentiality
(a) Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party.
(b) The obligation of confidence in clause (a) extends to Confidential Information provided to or obtained by a party before entering into this Agreement.
10.2 Permitted disclosures
(a) Each party may disclose Confidential Information of the other party only on a ‘need-to-know’ and confidential basis:
(i) with the prior written consent of the other party;
(ii) to its Personnel;
(iii) to its Related Bodies Corporate; and
(iv) to its auditors, professional advisors, agents;
for the exercise of rights or the performance of obligations under this Agreement.
(b) Each party who discloses Confidential Information of the other party pursuant to this clause 10.2 must ensure that the information is kept confidential by the recipients.
10.3 Exclusions
The obligation of confidence in clause 10.1 does not apply to Confidential Information that is:
(a) required to be disclosed by applicable law or the rules of any stock exchange upon which the recipient’s securities are listed, provided that the recipient:
(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(ii) before disclosing any information, the recipient provides a reasonable amount of notice to the discloser and exhausts all reasonable steps (whether required by the discloser or not) to maintain the Confidential Information in confidence;
(b) in the public domain otherwise than as a result of a breach of this Agreement;
(c) independently developed by the recipient; or
(d) already known by the recipient independently of its involvement in this Agreement or interaction with the other party and free of any obligation of confidence.
10.4 Remedies for breach
(a) Each party acknowledges that the value of the other party’s Confidential Information is such that an award of damages or an account of profits may not adequately compensate if this clause 10 is breached.
(b) Each party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this clause 10, a party may seek and obtain an ex-parte interlocutory or final injunction to prohibit or restrain the other party or its Personnel from any breach or threatened breach of this clause 10.
11. PRIVACY
11.1 The Customer’s use of the Platform is subject to GovConnex’s Privacy Policy (available at https://www.govconnex.com/au/privacy-policy). We will only use and disclose Personal information in accordance with our Privacy Policy.
11.2 The Customer must ensure that in respect of any Personal Information it makes available to GovConnex in connection with the Platform (including through the Customer Material and Authorised User Material), the relevant individual has:
(a) received all notifications on behalf of GovConnex; and
(b) provided all relevant consents,
required under applicable Privacy Laws for GovConnex to collect, use and disclose the Personal Information for the purpose of providing the Platform.
12. DISCLAIMER
The Customer acknowledges that:
(a) GovConnex does not warrant that the use of the Platform will result in any specific result;
(b) the Customer has entered into this Agreement for the use of the Platform as a result of its own inquiries and investigations and GovConnex has made no representations about the suitability of the Platform;
(c) the Platform aggregates information and material from various sources and GovConnex is not responsible for the contents of any such material or any outcome that is inaccurate, incomplete or non-reliable as a result;
(d) GovConnex is not responsible for any outcome that is inaccurate, incomplete or non-reliable due to inaccurate, incomplete or non-reliable Customer Materials;
(e) the Platform may contain some minor bugs;
(f) anything in or derived from the Platform may contain some minor bugs;
(g) access to the Platform may not be uninterrupted; and
(h) Customer data may be corrupted, degraded, lost or erased in the course of:
(i) GovConnex’s provision of the Platform; or
(ii) the Customer’s, or any Authorised User’s, use of the Platform,
and that it is the Customer’s responsibility to take appropriate measures to minimise any Loss that might flow from any of those events occurring.
13. INDEMNITY
Each party (First Party) indemnifies the other party (Indemnified Party) against any Loss suffered or incurred in connection with any:
(a) Loss suffered by the Indemnified Party or any other third party during any attendance at the First Party’s premises;
(b) third party Claim against the Indemnified Party, its Personnel or sub-contractors arising directly or indirectly from use of any Customer Material or Authorised User Material in accordance with this Agreement;
(c) use by the Customer or the Authorised Users of the Platform;
(d) the First Party’s breach or negligent performance of this Agreement;
(e) violation by the First Party of any applicable laws;
(f) enforcement of this Agreement, including any debt collection or legal costs incurred by the Indemnified Party on an indemnity basis.
14. LIABILITY
14.1 Limiting liability
Subject to clause 14.2 and to the extent permitted by law, GovConnex’s aggregate liability for any Loss arising in any way in connection with the Platform or this Agreement (whether under law of contract or tort (including negligence), statute, in equity, under a consumer guarantee or otherwise) is limited to the amount equal to two times the average annual value of the Term or Extension Term (as the case may be) which commenced immediately preceding the date of the event giving rise to the liability.
14.2 Exclusion of Consequential Loss
Neither party is liable to the other for any:
(a) Consequential Loss or special, exemplary or punitive Loss or damage suffered or incurred by the Customer in connection with this Agreement; or
(b) loss of profit, loss of revenue, loss of opportunity, loss, degradation or damage of Customer Materials, third party Claims, loss of goodwill, loss of business, loss of anticipated savings, loss of reputation or similar losses, liabilities or expenses, however caused.
14.3 Exceptions to limitation and exclusion
(a) The limitations and exclusions in clauses 14.1 and 14.2 do not apply in relation to Loss arising out of any:
(i) breach by either party of clause 10;
(ii) repudiation or wrongful abandonment of this Agreement by GovConnex; or
(iii) fraudulent or criminal conduct of GovConnex.
(b) To the extent any Loss is caused, or contributed to, by the Customer or any of the Authorised Users, GovConnex’s liability will be reduced to the extent of that contribution.
14.4 Non-excludable obligations
(a) To the extent that you acquire goods or services from us as a 'consumer' (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth)), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
(b) Nothing in this clause 14 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law (as set out in the Order Form to the Competition and Consumer Act 2010 (Cth)) or any other statute, the exclusion, restriction or modification of which would:
(i) contravene that statute; or
(ii) cause any term of these terms to be void.
15. TERMINATION OF AGREEMENT
15.1 Termination by GovConnex
GovConnex may terminate this Agreement:
(a) by written notice to the Customer if the Customer is more than 7 days late in paying any amount payable to GovConnex under this Agreement;
(b) at any time by written notice to the Customer if GovConnex believes that the Customer’s use of the Platform is likely to violate a law which is applicable to the Customer or likely to result in harm to the function or security of the Platform or otherwise is contrary to this Agreement; or
(c) at any time after the Term for convenience by providing 15 days’ written notice to the Customer.
15.2 Termination by the Customer
The Customer may terminate this Agreement at any time by notice to GovConnex however, the Customer will retain access to the Platform for the balance of the Term or Extension Term (as the case may be) and no refund will be provided to the Customer for any period after the Customer has notified GovConnex of such termination, unless otherwise provided for at law.
15.3 Termination by either party
Without limiting clauses 15.1 and 15.2, either party may terminate this Agreement by giving written notice to the other party (Defaulting Party), such termination will take effect from the date of the notice if:
(a) the Defaulting Party is subject to an Insolvency Event;
(b) the Defaulting Party commits a breach of this Agreement and does not rectify that breach within 60 days (or another period agreed by the parties in writing) of receiving written notice of the breach from the first party; or
(c) the Defaulting Party commits a material breach of this Agreement which is not capable of remedy.
15.4 Consequences of termination or expiry of this Agreement
(a) Termination or expiry of this Agreement does not prejudice any right of action or remedy of either party which accrued prior to termination or expiry.
(b) Upon termination of this Agreement by GovConnex in accordance with 15.1(a), 15.1(b) or 15.3, payments made by the Customer will be non-refundable.
15.5 Return of Confidential Information
On termination or expiry of this Agreement, each party must promptly return any Confidential Information of the other party in its possession, custody or control.
16. ASSIGNMENT
16.1 GovConnex may at any time on written notice to the Customer assign all or any part of its rights, or novate any of its rights and obligations under this Agreement, to any person.
16.2 Rights arising out of or under this Agreement may not be subcontracted, assigned or novated by the Customer without the prior written consent of GovConnex.
17. DISPUTES
17.1
Except for urgent interlocutory relief, if a party (Complaining Party) has a dispute with the other party in relation to this Agreement or the Platform, the parties must attempt to settle that dispute before resorting to external dispute resolution mechanisms, and for this purpose:
(a) the Complaining Party must provide the other party with a written notice of dispute together with all information, documentation and other materials and assistance reasonably necessary in order to understand the basis of and reasons for the dispute and any claims the Complaining Party may have against the other party; and
(b) the appropriate senior management from both parties with authority to resolve the dispute must meet and make a bona fide attempt to settle any issues arising out of clause 17.1(a).
17.2 If a dispute is not settled by the parties within 10 Business Days of one party sending to the other written notice of the dispute, the parties may pursue other dispute resolution avenues.
18. FORCE MAJEURE
18.1 GovConnex will not be in breach of this Agreement or liable to the Customer for any Loss incurred by that other party as a direct result of GovConnex failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from a Force Majeure Event.
18.2 If a Force Majeure Event occurs, GovConnex must notify the other party in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
18.3 On providing the notice in clause 18.2, GovConnex will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, GovConnex must continue to use all reasonable endeavours to perform those obligations.
18.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
19. NOTICES
19.1 Notice requirements
Except where otherwise prescribed by this Agreement, any notice or any other communication including any approval, consent, request or demand in connection with this Agreement, must be:
(a) in legible writing and in English;
(b) signed by the relevant party; and
(c) be sent by electronic mail as follows:
(i) For notices to GovConnex: send to billing@govconnex.com
(ii) For notices to the Customer: send to a Customer Representative.
19.2 When notice takes effect
A notice takes effect from the time it is received unless a later time is specified in that notice.
19.3 Deemed receipt
A notice is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if posted to or from a place outside Australia) Business Day after posting; and
(b) in the case of an email, at the time in which it is received by the addressee’s server unless that time is before 9:00am or after 5:00pm on a Business Day whereupon receipt is at 9:00 am on the next Business Day. GovConnex is not liable for any automatic filtering or delays imposed by the Customer’s email provider or network. It is the Customer’s responsibility to ensure that their contact information is current and that they have configured their systems to receive GovConnex notifications.
20. GENERAL
20.1 Relationship between parties
Nothing in this Agreement or the relationship between the parties:
(a) may be deemed to constitute a partnership, joint venture or other legal relationship between the parties other than that of supplier and purchaser or service provider and recipient; or
(b) authorises either party to incur any liability for or on behalf of the other party.
20.2 Marketing
The Customer acknowledges and agrees that GovConnex may display the Customer’s name and logo on GovConnex’s website and other promotional marketing materials, unless the Customer has opted out by sending an email to opt-out@govconnex.com.
20.3 Amendment of Agreement
(a) We reserve the right to modify these Terms of Service at any time. Material changes will be communicated to your nominated email per clause 19 above, at least thirty (30) days before they take effect.
(b) Your continued use of the service after the effective date constitutes your acceptance of the updated Terms.
20.4 Severance
(a) If a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed from the remainder of this Agreement for the purposes of enforcement in that jurisdiction.
(b) The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
(c) This clause 20.4 has no effect if the severance:
(i) alters the basic nature of this Agreement; or
(ii) is contrary to public policy.
20.5 Waivers
(a) A provision of, or a right created under, this Agreement may not be waived except in writing executed by the party granting the waiver.
(b) A failure by a party to insist on strict performance of any of the terms of this Agreement is not to be deemed a waiver of any subsequent breach or default of the terms of this Agreement.
20.6 Rights cumulative
Except as expressly provided to the contrary in this Agreement, the rights, powers, discretions, authorities and remedies provided in this Agreement are cumulative with, and do not exclude, the rights, powers, discretions, authorities or remedies of a party provided by law independently of this Agreement.
20.7 Exercise of rights
Except as expressly provided to the contrary in this Agreement, a party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy.
20.8 Governing law and submission to jurisdiction
This Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia, and courts of appeal from them, for determining any dispute concerning this Agreement or the transactions contemplated by it.
20.9 Entire Agreement
This Agreement supersedes all previous agreements in respect of its subject matter and contains all the express terms of the agreement between the parties.
20.10 Counterparts
This Agreement may be executed in any number of counterparts.
20.11 Survival
The following clauses in this Agreement impose continuing rights and obligations on the relevant parties and survive termination or expiry of this Agreement: 8, 9, 10, 11, 13, 14, 17, 19, 20.8, and 20.11.
Last updated 7 January 2024
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