SYNCHROAD – SOFTWARE LICENCE AND SUPPORT AGREEMENT

This Software Licence and Support Agreement ("Agreement") is made between System Technik. Pty. Ltd. trading as Synchroad (ABN 26 166 868 015) ("Synchroad") and Subscriber (“Customer”).

This Agreement sets out the terms and conditions on which Synchroad agrees to licence the software program Synchroad (the "Software") to Customer.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, Synchroad and Customer agree as follows:

1. Licence.                                             

Subject to Customer’s compliance with the terms and conditions of this Agreement, Synchroad grants to Customer a non-exclusive, non-transferable licence to use the Software during the term of the Subscription for Customer’s internal use.

2. Term

This Agreement commences the submission of an online subscription form (Subscription) and continues or a period of 1 month.

At the end of the Initial Term, this Agreement will automatically extend for successive periods of one month by the payment of the current monthly fee unless Customer unsubscribes through the online portal.

 

3. Restrictions.

Except to the extent permitted by this Agreement and by law, Customer must not modify, copy, duplicate, reproduce, merge, combine with any other products, reverse engineer or decompile the whole or any part of the Software without the prior written consent of Synchroad.

4. Services.

Synchroad will provide the support services described here to the Customer in relation to the Software (“Support Services”).  Synchroad has no obligation to provide any other support services or assistance to Customer other than the Support Services.

(a) Technical Problems:  In the case of technical problems Customer must make all reasonable efforts to investigate and diagnose problems before contacting Synchroad. If Customer still needs technical help, please check the support provided online by Synchroad on the Website or failing that fill in a support request form.

(b) Service availability: Whilst Synchroad intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.

(c) If for any reason Synchroad has to interrupt the Software for longer periods than Synchroad would normally expect, Synchroad will use reasonable endeavours to publish in advance details of such activity on synchroad.com.

 

5. Acceptable use 

Customer must not make or permit any use of the Software in a way which in Synchroad’s reasonable opinion is unacceptable, including where:

(a) it involves the publication, communication or recording of anything which is false, defamatory, harassing or obscene;

(b) it involves the communication of unsolicited commercial electronic messages;

(c)  it would involve the contravention of any person’s rights (including Intellectual Property Rights); or

(d) it may contravene any applicable laws.

 Customer agrees that Synchroad may immediately suspend Customer’s right to use all or any part of the Software, and remove or disable access to any person that contravenes the restrictions in this clause 5 or is otherwise in breach of this Agreement.

 Synchroad is not liable to Customer under this Agreement or otherwise if and to the extent Customer’s use of the Software is contrary to any laws, regulations or rules (including those regarding privacy, intellectual property and working with children) or any third party rights.

 

6.  Customer’s Other Obligations 

 6.1 Data Security.  

 n connection with the operation of the Software, Customer shall maintain (and Synchroad shall have no responsibility to provide or maintain) adequate technical and procedural access controls and system security requirements and devices, necessary to ensure data privacy, confidentiality, integrity, authorisation and virus detection and eradication.

 6.2 Data quality

 Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability and appropriateness of all content uploaded to, processed using, or generated through the Software.  Synchroad shall have no obligation to ensure data quality or any liability in relation to any defect, error, inaccuracy or other failure in such data.

 6.3 Backup of Data

 Customer must maintain copies of all data inputted into the Software. Synchroad adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of data. Synchroad expressly excludes liability for any loss of Data no matter how caused.

 

7. Fees and expenses.

 In consideration for the licence to use the Software and the provision of the services under this Agreement, Customer will pay Synchroad the fees set out on synchroad.com/pricing. The fees may change from time to time.

 

8. Intellectual property.

 Nothing in this Agreement effects any transfer or assignment in ownership of any Intellectual Property Rights in the Software or any item which exists prior to the date of this Agreement, or any content uploaded to, processed using, or generated through the Software by Customer and its authorised users.

 Synchroad will own any Intellectual Property Rights in any materials or other things created by or on behalf of Synchroad in the course of providing the Support Services.

 Synchroad hereby warrants to Customer that Synchroad has the necessary rights to grant to Customer the licence to use the Software as set forth in this Agreement.  In the event of any breach of the foregoing warranty, Customer's sole remedy shall be either (at Synchroad’s sole discretion):

Synchroad procuring, atSynchroad’s expense, the right for Customer to use the Software;

Synchroad modifying the Software to render it non-infringing or to circumvent the allegation of infringement (as applicable); or

Synchroad refunding to Customer the full amount of the current month’s Licence and Support Fee upon the return of the Software to Synchroad. 

 

 9. Warranties.

 Synchroad does not warrant that the use of the Service will be uninterrupted or error free.

 Synchroad does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the applications contained in the Software will meet Customer's requirements.

 Customer remain solely responsible for complying with all applicable laws. It is Customer’s responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).

 

 10. Software Upgrades

 During the term of this Agreement, Synchroad shall make available to Customer any general updates to, and new releases of, the Software as and when they are made available by Synchroad to the general public.

 

11. Payment.

 An invoice for the Access Fee will be issued each month starting upon expiry of the trial period. All invoices will include the fee for one month of use. Synchroad will continue invoicing Customer monthly until this Agreement is terminated in accordance with clause 16.  All Synchroad invoices will be sent to Customer, or to a Billing Contact whose details are provided by Customer, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 7 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the fee.

 

12. Taxes.

 Expressions which are not defined, but which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999, have the same meaning when used in this clause 12.

 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST or any other taxes or duties payable in respect of the transactions contemplated under this Agreement.

In addition to all other amounts due hereunder, Customer shall also pay to Synchroad, or reimburse Synchroad as appropriate, all amounts due for tax on the Software and for sales, use, excise taxes or other taxes which are measured directly by payments made by Customer to Synchroad.

 If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply, subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment.

 Where a party is required under this document to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:

the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled; and

if the payment or reimbursement is subject to GST, an amount equal to that GST.

 

13. Warranty Disclaimer.

 Synchroad warranties set forth in this Agreement are the only warranties given and Synchroad excludes (to the extent permitted by law) all other warranties, express or implied, including warranties of merchantability and fitness for a particular purpose.  If any law implies a condition, guarantee or warranty into this Agreement in relation to the supply of any goods or services by Synchroad which cannot lawfully be excluded then, to the maximum extent permitted by law, Synchroad’s liability for any breach of such implied term or guarantee will be limited to (in the case of services) the supply of the relevant service again or the payment of the cost of having that service re-supplied or (in the case of goods) the replacement or repair of the goods or the payment of the cost of having them replaced or repaired.

 

14. Customer Indemnity

 Customer agrees to indemnify Synchroad, its related bodies corporate and their directors, officers, employees, agents and contractors against any claims, liability, loss, cost, expense or damage arising from or in connection with any use of the Software for which the Customer is responsible or any breach by Customer of its obligations under this Agreement.

 15. Limitation of Liability.

In no event will Synchroad be liable for any incidental, consequential or other indirect loss or damage suffered or incurred by Customer arising out of or in connection with this Agreement (including loss or corruption of data, loss of profit, loss of use, wasted overheads, loss of revenue and loss of reputation or goodwill), regardless of whether Synchroad was advised of the possibility of such losses in advance or whether such losses may reasonably be supposed to have been in the contemplation of both parties as a probable consequence.

 In no event shall Synchroad’s liability to Customer under or in connection with this Agreement exceed the amount of Licence and Support Fees paid by Customer under this Agreement in the month preceding the earliest event giving rise to the claim, regardless of whether Customer's claim is based on contract, tort (including negligence), strict liability, product liability or otherwise.

 

16. Termination

16.1 Termination for convenience

Synchroad or Customer may terminate this Agreement or a Service for convenience at any time by giving Customer 30 days prior written Notice.

16.2 Termination for breach

 If Customer commits a material breach of any of its obligations under this Agreement and:

the breach is not capable of remedy; or

the breach is capable of remedy but the party in breach has failed to remedy that breach within 14 days of receiving written notice from the other party,

Synchroad may terminate this Agreement with immediate effect by written notice to the other party.

 

16.3 Termination for insolvency

 If a party becomes, or threatens to become, or is in jeopardy of becoming, subject to any form of insolvency administration or ceases to conduct business so as to properly perform its obligations under this Agreement, the other party may terminate this Agreement immediately by written notice to that party.

 

 16.4 Termination for Force Majeure

 If a party fails to perform any of its obligations due to a Force Majeure Event for more than thirty days, the other party may terminate this Agreement immediately by written notice to that party.

 

16.6 Consequences of termination

 Upon termination of this Agreement, Customer must immediately cease using the Software and Customer must return or destroy (at the direction of Synchroad) any of the other Synchroad’s Confidential Information in Customer’s possession within thirty days of termination.

 Termination of this Agreement will be without prejudice to rights accrued prior to the end of this Agreement.

 Clauses of this Agreement that are expressed to, or by their nature, survive the termination or expiry of this Agreement will survive and continue in effect. 

 On termination, Synchroad will have no obligation (except as required by law) to refund any fees that have been prepaid by the Customer pursuant to this Agreement.

 

17. Confidentiality

 Each party must keep the Confidential Information of the other party confidential and must not:

use or permit the use of that confidential information;

make copies of that confidential information; or

disclose that confidential information to any person,

other than for the purposes of this Agreement, with the other party’s prior written consent or as required by law.

 

18. Force Majeure

 A party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to Force Majeure Event.  If a delay or failure of a party to perform its obligations is caused by Force Majeure Event, the performance of that party’s obligations will be suspended while the Force Majeure Event continues.

 

 19. Notice.

 Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

 If to Synchroad:

PO Box 444

Kew VIC, 3101

 If to Customer:

See the address listed for the Customer in subscription.

 

20. Governing Law.

 This Agreement shall be construed and enforced in accordance with the laws of the state of Victoria, Australia.  Each of the parties submits to the jurisdiction of the courts of Victoria, Australia. 

 

21. No Assignment.

 Neither this Agreement nor any rights or obligations under this Agreement may be assigned, novated or sub-licensed by Customer without the prior express written approval of Synchroad.  Synchroad may assign, novate or otherwise delegate all or any of its rights and obligations under this Agreement.

 

22. Subcontractors.

 Synchroad may use subcontractors to perform any of its obligations under this Agreement.

 

23. Entire Understanding.

 This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof.  Unless otherwise permitted under the terms of this Agreement, this Agreement may be varied or replaced only by a document that is duly executed by both parties.

 

24. Severability.

 If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

 

25. Interpretation.

 In this Agreement, headings and underlining are for convenience only and do not affect the otherwise clear interpretation of this Agreement.  Unless the context otherwise requires:

words importing the singular include the plural and vice versa;

a covenant or agreement on the part of two or more persons binds them jointly and severally;

a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this Agreement;

a recital, schedule, annexure, exhibit or a description of the parties forms part of this Agreement;

a reference to any agreement or licence is to that agreement or licence (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;

a reference to any party to this Agreement or any other licence or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns;

where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

a reference to a month is to a calendar month;

f an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing; and

no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.

 

26. Counterparts

 This Agreement may be executed in any number of counterpart copies, each of which shall be deemed to be an original if originally executed, all of which shall constitute one and the same Agreement.

 

27. Additional Definitions.

 Confidential Information includes information that is by its nature confidential, is designated as confidential, or a party knows or ought reasonably to have known is confidential, but does not include information which is in the public domain or is in or comes into a party’s possession independently of this Agreement (other than due to a breach of this Agreement) or is independently developed by a party.

 Consumer Price Index means the Australian consumer price index (all groups) published by the Australian Bureau of Statistics.

 Force Majeure Event means any communications disruption, fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot or other event beyond the reasonable control of the affected party to the extent that it results in the affected party being unable to perform an obligation (apart from a payment obligation) under this Agreement on time.

 Intellectual Property Rights includes all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trade marks, rights in confidential information (including trade secrets and know how), registered designs, circuit layout rights and all other rights generally falling within the scope of the term “intellectual property rights”.