Hospitality Institute of NSW Pty Ltd Client Master Software As A Service Agreement Terms and Conditions
The following terms and conditions (â€œTerms and Conditionsâ€) provide for terms that are common to the Client Master SaaS Agreement (the â€œAgreementâ€), including all Schedules, if any, and Orders. In the event of a conflict between these Terms and Conditions, any Schedule, or any Order, these Terms and Conditions will control, unless the Schedule or Order expressly states that the Schedule or Order shall supersede the applicable provision of these Terms and Conditions. In the event of a conflict between any Schedule and any Order, the Schedule will control, unless the Order expressly states that the Order shall supersede the applicable provision of the Schedule.
As used in this Agreement, and in addition to any other defined terms, the capitalized terms used herein are defined in the Definitions at the end of these Terms and conditions.
Hospitality Institute of NSW (â€œHospitality Institute of NSWâ€) is the Value-Added Reseller of software. For the purposes of this document, â€œHelp Out Hospoâ€ is used to refer to the products and services (primarily software and related services).
The term â€œBusiness Hoursâ€ refers to normal business hours with respect to Australian Eastern Standard Time or Australian Eastern Daylight Savings Time, whichever is the current prevailing in the State of Victoria.
3.1 General. All Services will be provided to Company according to these Terms and Conditions and one or more Schedules and Orders.
3.2 Software Services. Help Out Hospo will provide Company, End Users and any other users authorized by the Company in accordance with the relevant Order (if any) with remote access to the applicable Software (â€œSoftware Servicesâ€) that are set forth in one or more Orders. Certain Software Services, and related browser and operating system compatibility, are more specifically described in Schedule A. During the Term and subject to Companyâ€™s compliance with this Agreement, Help Out Hospo grants Company the worldwide, non-exclusive, non-transferable, non-assignable, and limited right and license to allow End Users to remotely access the Software that is located on the Server in accordance with the terms of this Agreement. Use of the Software Services may be further limited by the terms and conditions contained in any applicable Schedule or Order.
3.3 Restrictions on Use. The Customer shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (iii) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation.
3.4 Helpdesk Services. If purchased by Company, Help Out Hospo will provide customer care and Helpdesk Services to Company as set forth in an Order and as further described in Schedule A (â€œHelpdesk Servicesâ€). Other than Helpdesk Services, Professional Services (as defined in Section 3.8), and other services specifically contracted for by Company, Help Out Hospo will have no obligation to provide customer support services to Company under the Agreement.
3.5 Maintenance. Company acknowledges that certain maintenance activities regarding the Services may be necessary or appropriate from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. In most instances, the infrastructure is designed to support updates by the engineering and support teams without the need to interrupt the Software Services. Where such maintenance activities are not reasonably anticipated to materially impact Companyâ€™s use of the Service, will have no obligation to provide notice to Company regarding such maintenance activities, although generally does so, in the ordinary course, at least  hours in advance of the same. If reasonably determines that maintenance activities will require an unavailability or outage of the Services in excess of ten (10) consecutive minutes, will give Company advance notice of the same. Help Out Hospo will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
3.6 Additional Services. Through the Services, Company may have the ability to purchase: (i) online courses; (ii) customized educational products; (iii) Apps; (iv) customized software (â€œCustomized Softwareâ€); and (v) additional modules (collectively, the â€œAdditional Servicesâ€). The delivery of and fees for the Additional Services will be as set forth in the applicable Order(s). Company must have an active subscription to the Software Services in order to access the Additional Services.
3.7 Third-Party Content. (a)As provided herein, certain portions of the Services and certain Materials, including certain online courses and educational products, may be provided or owned by third-parties (â€œThird-Party Contentâ€). Company understands that Help Out Hospo is not a publisher of any Third-Party Content accessed through the Services and, unless the same is required by Help Out Hospo or by Help Out Hospo for usage in connection with the Services, is not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Services. Company further acknowledges and agrees that, unless the same is required by Help Out Hospo or by Help Out Hospo for usage in connection with the Services, it is solely responsible for accessing, entering into and complying with any terms and conditions governing such Third-Party Content. b). In connection with delivery of the Services, Help Out Hospo may, through its marketplace integrations features, provide Company with suggested Third-Party Content, which is independently developed for use in connection with the Software Services. In the event that Company purchases any Third-Party Content in connection therewith, it can be imported into the Software Services by linking such Companyâ€™s third-party account to the Software Services. Company acknowledges and agrees that Help Out Hospo does not develop and does not control any third-party provider or Third-Party Content accessed in such a manner, and the availability of the same should not be considered an endorsement of such sites or any Materials, products or information offered on such sites, unless Help Out Hospo has expressly endorsed the same. Further, the ability to import any such Third-Party Content into the Software Services does not guarantee that the same will function error free or for Companyâ€™s intended purposes, and no representations or warranties regarding the same are made by Help Out Hospo.
Further, in addition to Third-Party Content selected and imported by Company pursuant to Help Out Hospoâ€™s marketplace integrations feature described above, Company and End Users may upload Third-Party Content into the Software Services. Company acknowledges and agrees that Help Out Hospo does not develop and does not control any Materials, services, or products (including software) that Company or any End User uploads into the Software Services and accesses, downloads, receives or purchases through or relating to Third-Party Content while using the Services.(c) Help Out Hospo may, but does not have any obligation to, block information, transmissions or access to certain information, services, products or domainsâ€”including Third-Party Contentâ€”if the same is deemed reasonably necessary to protect the Services, Help Out Hospoâ€™s network, the public or Help Out Hospoâ€™s customers or users.
3.8 Professional Services. Help Out Hospo will provide the consulting, implementation, training, integration, enhancement, configuration and other services that are identified on Schedule B and on any Order (collectively, â€œProfessional Servicesâ€). If Company requests, Help Out Hospo may provide additional Professional Services to Company pursuant to the terms of one or more written Statements of Work (each a â€œSOWâ€), which will either be attached to and become part of the Agreement or incorporated into an Order Form as part of the Agreement. Each SOW will include (i) a description of the Professional Services; (ii) the then estimated completion dates; (iii) the fees, costs, and expenses payable to Help Out Hospo; (iv) the payment schedule; and (v) a signature by Company and Help Out Hospoâ€™s respective authorized representatives. In the event that Help Out Hospo and Company agree that Help Out Hospo will provide certain Professional Services on-site, Company will provide to Help Out Hospo copies of all applicable onsite safety policies and procedures, which will be acknowledged by Help Out Hospo in writing, prior to the commencement of any onsite Professional Services, and Help Out Hospo will agree to abide by the same. Company will provide to Help Out Hospoâ€™s assigned representative written confirmation of receipt and acceptance of the Professional Services rendered upon completion of the project in accordance with the applicable SOW. Upon completion of the project in accordance with the applicable SOW, all Professional Services will be deemed delivered, and Help Out Hospo will not be obligated to deliver further services. In the event that any payment by Company to Help Out Hospo is more than thirty (30) days past due (and not in reasonable dispute) in connection with Professional Services, Help Out Hospo will have the option to cease providing any and all Services under the relevant SOW until such past due payment is received. Help Out Hospo warrants that the Professional Services provided hereunder will be performed in a professional manner and in accordance with generally accepted industry practices (the â€œProfessional Services Warrantyâ€). Company must notify Help Out Hospo promptly (and, in any event, within ten (10) days) of the discovery of any breach of the Professional Services Warranty. In the event of a breach by Help Out Hospo of the foregoing Professional Services Warranty, Help Out Hospo shall re-performance the relevant Professional Services at Help Out Hospoâ€™s expense, or, if Help Out Hospo will not or cannot do the same, then it shall issue a refund for all affected Professional Services which have failed to meet the Professional Services Warranty. Except for the foregoing limited Professional Services Warranty, all other warranties, and representations, express or implied, with respect to the Professional Services, are limited by Section 8.0.
4.0 OWNERSHIP RIGHTS.
4.1 For Help Out Hospo. All title, ownership rights, and Intellectual Property Rights in and to the Help Out Hospo Software, Additional Services, Professional Services, and all Help Out Hospo Marks (and all Derivative Works and copies thereof) are and will remain owned by Help Out Hospo. Company acknowledges that the Help Out Hospo Software in source code form remains Proprietary Information of Help Out Hospo and that the source code is not licensed to Company by this Agreement or any Schedule or Order and will not be provided by Help Out Hospo.
4.2 For Company. All title, ownership rights, and Intellectual Property in Materials that Company owns, and that Company uploads to Help Out Hospo Software, will remain owned by Company.
5.0 FEES AND PAYMENT TERMS.
5.1 Fees. Fees payable under this Agreement and any Order or Schedule shall be in the amounts and payable on the terms set forth on the applicable Schedule or Order and as otherwise set forth in section 5.2 below. Except as otherwise may be set forth in an Order or Schedule, all payments for fees shall be due 30 days from receipt by Company of an invoice for same. After the Initial Term, and at the beginning of each Renewal Term thereafter, the fees for such upcoming Renewal Term shall be revised to reflect Help Out Hospoâ€™s then-current fees for the applicable Services. An updated version of the price list will be available on Help Out Hospoâ€™s website. All fees paid, and expenses reimbursed under this Agreement will be in the currency specified in an Order.
5.2 Active Users: Unless otherwise set forth in an Order, the fees for accessing the Software Services and any online courses are determined based on the number of Active Users in any billing period; and Active User limitations may vary across multiple Service modules and offerings of Help Out Hospo, if applicable. Unless otherwise set forth in an Order, the billing periods for measuring Active Users will be the one-month periods beginning on the Effective Date and on each one-month anniversary of the Effective Date thereafter, continuing through the end of the Initial Term or Renewal Term, as applicable. Fees for additional Active Users in excess of the authorized number of Active Users set forth in the Order in each billing period (each, an â€œExtra Userâ€) will be invoiced to Company in arrears in the amount specified in the Order.
Help Out Hospo reserves the right, by notice and use of appropriate and reasonable measures, to audit the number of Active Users during any active billing period, to determine Companyâ€™s compliance with Active User limitations, across one or more modules or offerings and Company will provide all reasonable assistance to Help Out Hospo in any exercise of such rights.
5.3 Expenses. For any Professional Services provided by Help Out Hospo, Company shall reimburse Help Out Hospo for actual, reasonable travel, living, and other incidental expenses incurred; provided, however, that all such reimbursements shall be made only in accordance with Companyâ€™s then existing applicable policies (if any) which shall be provided to Help Out Hospo by Company in advance.
5.4 Late Fees. If Help Out Hospo has not received payment within [30 days] after the due date (and such payment is not the subject of dispute between the parties), and without prejudice to any other rights and remedies of Help Out Hospo: (i) Help Out Hospo may, without liability to Company, disable the Customer’s password, account and access to all or part of the Services and Help Out Hospo shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (ii) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over LIBOR from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.5 Taxes. The fees and expenses due to Help Out Hospo as set forth in this Agreement shall be paid free and clear of any deduction or withholding on account of taxes. Company shall be responsible for all sales, use, value-added, ad valorem or other taxes (including fees, tariffs, levies, duties or charges in the nature of a tax) imposed by any governmental entity upon the sale, use or receipt of the Software Services (other than taxes based solely on Help Out Hospoâ€™s income). If and when Help Out Hospo has the legal obligation to collect such taxes, Help Out Hospo will invoice Company the amount of such taxes, and Company will pay such amount unless Company provides Help Out Hospo with a valid tax exemption certificate authorized by the appropriate taxing authority. Company will provide Help Out Hospo with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Help Out Hospo to establish that such taxes have been paid.
The parties shall reasonably cooperate to more accurately determine each partyâ€™s tax liability and to
minimize such liability to the extent legally permissible. For tax purposes, Company represents and warrants to Help Out Hospo that the Software Services will be considered by the partyâ€™s as delivered in the locations specified in the Order, or Companyâ€™s principal business address, if not otherwise specified in the Order.
5.6 No Deductions or Setoffs. All amounts payable to Help Out Hospo under this Agreement shall be paid by Company in full, and without any setoff, recoupment, counterclaim, deduction, debit or withholding, for any reason (other than any deduction or withholding of tax, as may be required by applicable law).
6.0 COMPANY OBLIGATIONS.
6.1 Technical Requirements. In accordance with the requirements set forth on Schedule A, Company must have required equipment, software, and Internet access to be able to use the Software Services. Acquiring, installing, maintaining and operating equipment, any Company Software, and Internet access is solely Companyâ€™s responsibility, except as otherwise expressly provided in an Order. Help Out Hospo neither represents nor warrants that the Help Out Hospo Software will be accessible through all web browser releases or all versions of tablets, smartphones, or other computing devices, except as expressly set forth on Schedule A.
6.2 Use of Website and Services. Company shall not and shall not knowingly permit others in using the Help Out Hospo website, Help Out Hospo Software or Software Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Help Out Hospo; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortious, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that constitutes a criminal offense; (iv) misrepresent or in any other way falsely identify Companyâ€™s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Services; (v) knowingly transmit or upload any material through the Software Services containing viruses, Trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Help Out Hospoâ€™s, or any other personâ€™s or entityâ€™s, network, computer system, or other equipment; (vi) interfere with or disrupt the Software Services, networks or servers connected to the Help Out Hospo systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software Services; (vii) attempt to gain unauthorized access to the Software Services, other Help Out Hospo customersâ€™ computer systems or networks using the Software Services through any means; (viii) copy, modify or create derivative works or improvements of the Services or Help Out Hospo Software; (ix) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Help Out Hospo Software, in whole or in part; (x) bypass or breach any security device or protection used by the Services or Help Out Hospo Software or access or use the Services or Help Out Hospo Software other than through the use of then valid access credentials; (xi) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property Rights notices from any Services or Help Out Hospo Software; (xii) access or use the Services or Help Out Hospo Software for purposes of competitive analysis of the Services or Help Out Hospo Software, the development, provision or use of a competing software service or product or any other purpose that is to Help Out Hospoâ€™s detriment or commercial disadvantage; or (xiii) interfere with another partyâ€™s use of the Software Services. Help Out Hospo has no obligation to monitor Companyâ€™s use of the Help Out Hospo Software and Software Services; however, Help Out Hospo reserves the right, at all times, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms of this Agreement, and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
6.3 Account Activation. Help Out Hospo will provide Company with a Help Out Hospo account in order to use the Services. Company may then choose an account name for its web space (e.g., myname.Help Out Hosposaas.com) that is not already in use by another customer. Company and End Users are fully responsible for all activities performed on or through their account. Company agrees that Company and each End User will: (a) provide true, accurate, current and complete information as prompted by the registration form, (b) maintain and promptly update the Registration Data to ensure the information is always true, accurate, current and complete, (c) immediately inform Help Out Hospo of any unauthorized use of an account or any other breach of security, and (d) exit from the account at the end of each work session. Help Out Hospo undertakes no obligation to verify the data provided by Company or its End Users. However, if Help Out Hospo finds or suspects that the provided information is untrue, inaccurate, not current or incomplete, Help Out Hospo may suspend or terminate Companyâ€™s or and End Userâ€™s account and refuse any and all current or future use of the Services (or any part of them).
6.4 Password Confidentiality. Each End User that uses the Software Services must choose a password when registering. Company will cause such End Users to maintain the confidentiality of the passwords. Company will also be assigned a password or passwords for access to and use of the Software Services. Company acknowledges that once the initial password provided to the Company is changed, Help Out Hospo does not retain the technical ability to retrieve such passwords. Company is fully responsible for all activities that occur using Company and End User passwords. Company acknowledges and agrees that Help Out Hospo shall not be liable for any loss that Company or any End User may incur as a result of someone else using a password that has been assigned to or obtained by Company or its End Users, either with or without the knowledge of Company or the applicable End User; nor shall Help Out Hospo be liable or responsible for any unauthorized access or misuse of the Software Services by Company or any of its End Users.
6.5 End Users. In relation to the End Users, Company undertakes that: (i) it will not allow or suffer any User Subscription to be used by more than one individual End User unless it has been reassigned in its entirety to another individual End User, in which case the prior End User shall no longer have any right to access or use the Services and/or Documentation; (ii) it shall maintain a written, up to date list of current End Users and provide such list to Help Out Hospo within  Business Days of Help Out Hospoâ€™s written request at any time or times; (iii) it shall permit Help Out Hospo to audit the Services in order to establish the name and password of each End User. Such audit may be conducted no more than once per quarter, at Help Out Hospoâ€™s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Companyâ€™s normal conduct of business; (iv) if any audits reveal that any password has been provided to any individual who is not an authorized End User, then without prejudice to Help Out Hospoâ€™s other rights, Company shall promptly disable such passwords and Help Out Hospo shall not issue any new passwords to any such individual; and (v) if any audits reveal that Company has underpaid Fees to Help Out Hospo, then without prejudice to the Help Out Hospoâ€™s other rights, Company shall pay to Help Out Hospo an amount equal to such underpayment within  Business Days of the date of the relevant audit.
6.6 Application Programming Interface Provisions. (a) In connection with its use of the Software Services, Company may, in some operating environments, be provided with an â€˜instanceâ€™ of the Help Out Hospo Software (â€œHelp Out Hospo Instanceâ€). The Help Out Hospo Instance may be accessible through an Application Program Interface (API) requiring login and API credentials (â€œHelp Out Hospo Credentialsâ€). Company expressly understands and agrees that Help Out Hospo does not control, track, or monitor the dissemination of any of â€œHelp Out Hospo Credentialsâ€, and, therefore, any misappropriation of those Help Out Hospo Credentials may neither be apparent to nor discoverable by Help Out Hospo without notice.
(b) Help Out Hospo provides documentation disclosing certain aspects of its software functionality (â€œAPI Software and Protocolsâ€). The API Software and Protocols may allow customers to pull and insert specific data elements into and out of their Help Out Hospo Instance (â€œCode Snippetâ€). Help Out Hospo expressly disclaims and shall have no liability with respect to how the API Software and Protocols or Code Snippets are used. Further, unless otherwise specified in an applicable SOW, Help Out Hospo takes no ownership interest in or rights to any third-party software code that incorporates the API Software and Protocols or Code Snippets, unless otherwise agreed by the parties upon in writing.
(c) In order to enable the functionality provided by the API Software and Protocols, a requesting party must serve licensed Help Out Hospo Credentials to the Help Out Hospo Instance. Company expressly understands that Help Out Hospo does not go beyond a verification of proper Help Out Hospo Credentials to validate whether or not access or use of a customerâ€™s Help Out Hospo Instance is authorized. Accordingly, an unauthorized party may use misappropriated, although valid, Help Out Hospo Credentials to gain access to and employ the functionality of an otherwise properly licensed Help Out Hospo Instance. Once the Help Out Hospo Credentials are validated by the Help Out Hospo Instance, any software code that is written in accordance to Help Out Hospoâ€™s API Protocols will function with the Help Out Hospo Instance as designed. Thus, any unauthorized dissemination and distribution of the Help Out Hospo Credentials may lead to an unauthorized use of a Help Out Hospo Instance. Help Out Hospo expressly disclaims and shall have no liability to Company or any third party for how the API Software and Protocols or Code Snippets are used, whether authorized or not authorized by Company.
(d) Help Out Hospo allows Company to control, track, and monitor end-users with access to the API credentials. Company expressly understands and acknowledges, therefore, that it is an obligation upon Company to govern all End Users under its license with policies and procedures that conform to an authorized use of their subscribed Help Out Hospo Instance.
(e) Nothing in the foregoing shall be construed as a requirement on Help Out Hospo to follow the same API Software and Protocols in the future, and the parties expressly understand that Help Out Hospo may change the API Software and Protocols, with or without notice, at any time. Help Out Hospo shall have no liability to Company or any third party with respect to any changes, whether announced or unannounced.
(f) Help Out Hospo expressly disclaims and shall have no liability for any loss or damages resulting from the use of the API Software and Protocols, with or without misappropriated API Credentials in a software application, and Company shall indemnify defend, and hold harmless Help Out Hospo against all claims, actions or proceedings, arising out of any claim related thereto, to the extent of Companyâ€™s action or inaction with respect thereto.
6.7 Compliance with Law. Company will notify Help Out Hospo immediately of any unauthorized use of the Software Services or any other breach of security that is known or suspected by Company, provided Company is legally able to give such notice. Help Out Hospo may suspend the Services in the event of a violation of Sections 6.2, 6.3, or 6.6, until such violation ceases and Help Out Hospo receives reasonable assurances that such violations will not continue. If Help Out Hospo believes, in its sole discretion, that the software, computing equipment or network systems owned or controlled by Help Out Hospo (collectively, â€œHelp Out Hospo Systemsâ€) are being currently used for criminal activity, in a manner that violates the legal rights of Help Out Hospo or of Help Out Hospo, Help Out Hospoâ€™s or Help Out Hospoâ€™s customers (including the Company), any user or other third party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the Help Out Hospo Systems places the Help Out Hospo Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to Company.
7.0 NON-DISCLOSURE AND CONFIDENTIALITY.
7.1 Disclosure. Each party may disclose to the other party certain Trade Secrets and Confidential Information of such party or of such partyâ€™s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, â€œTrade Secretsâ€ means information that is a trade secret under law; â€œConfidential Informationâ€ means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; â€œProprietary Informationâ€ means Trade Secrets and Confidential Information; the â€œDisclosing Partyâ€ refers to the party disclosing Proprietary Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Partyâ€™s employees or agents; and â€œRecipientâ€ refers to the party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipientâ€™s employees or agents.
7.2 Requirement of Confidentiality. Recipient agrees to hold the Proprietary Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement.
Company acknowledges that the Help Out Hospo Software and Documentation are the Proprietary Information of Help Out Hospo. With regard to the Trade Secrets, the obligations in this Section 7.2 shall continue for so long as such information constitutes a trade secret under applicable law. With regard to the Confidential Information, the obligations in this Section 7.2 shall continue for the term of this Agreement and for a period of three (3) years thereafter. The foregoing obligations shall not apply if and to the extent that: (i) Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach of this Agreement; (ii) prior to disclosure hereunder was already in the Recipientâ€™s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the Recipient on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Proprietary Information, then Recipient may disclose the requested Proprietary Information; provided however, that, Recipient shall first notify Disclosing Party prior to disclosure, if allowed by law, in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Proprietary Information which Recipient is required to disclose.
7.3 Return of Materials. Upon the request of the Disclosing Party, Recipient shall promptly destroy or deliver to the Disclosing Party its Proprietary Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, Recipient shall be permitted to retain such copies of Proprietary Information as necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systemsâ€™.
7.4 Data Use. Company agrees that data derived by Help Out Hospo from Help Out Hospoâ€™s performance of the Services or input by Company may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules, except that such analysis shall be performed solely by Help Out Hospo and such analysis shall be performed only in conjunction with data derived by Help Out Hospo from Help Out Hospoâ€™s performance of services for other customers, input by other Help Out Hospo customers or obtained from party data sources. The results of such analysis (â€œDe-identified Dataâ€) may be used by Help Out Hospo for any lawful purpose, including determining future hardware and communications needs for Help Out Hospo systems and determining trends associated with warehouse use, operation, and efficacy. Notwithstanding anything contained in this Agreement to the contrary, De-identified Data shall not contain (i) any Proprietary Information of Company, (ii) any information that identifies or can be reasonably used to identify an individual person, (iii) any information that identifies or can be reasonably used to identify Company or its affiliates, suppliers, or End Users, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of Company. Except as otherwise provided herein, Help Out Hospo shall only use Companyâ€™s Proprietary Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).
7.5 Protection of Companyâ€™s Proprietary Information. Help Out Hospo agrees to use commercially reasonable efforts in accordance with industry best practices to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Company Proprietary Information, as more specifically set forth in Schedule A.
7.6 Processing of Personal Data. To the extent that Help Out Hospo processes personal data (as that term is defined in Help Out Hospo’s Data Processing Addendum, ttps://www.Help Out Hospo.com/tos/Help Out Hospo_DPA_EN.pdf) of Company in the course of providing the Services, it shall do so in accordance with the Data Processing Addendum provided herewith.
8.0 LIMITED WARRANTY
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Help Out Hospo warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this agreement.
9.0 HELP OUT HOSPOâ€™S OBLIGATIONS/LIABILITY
9.1 Help Out Hospoâ€™s Obligations. All Professional Services provided by Help Out Hospo under this Agreement shall be provided with reasonable skill and care. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Help Out Hospoâ€™s instructions, or modification or alteration of the Services by any party other than Help Out Hospo or Help Out Hospoâ€™s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, Help Out Hospo will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Company with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Companyâ€™s sole and exclusive remedy for any breach of the undertaking in this Section 9. Notwithstanding the foregoing, Help Out Hospo (i) does not warrant that Companyâ€™s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by Company through the Services will meet the Customer’s requirements; and (ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Company acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. This agreement shall not prevent Help Out Hospo from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
9.2 Limitation of Liability. Except as expressly and specifically provided in this agreement: (i) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Help Out Hospo shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Help Out Hospo by the Customer in connection with the Services, or any actions taken by Help Out Hospo at the Customer’s direction;(ii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (iii) the Services and the Documentation are provided to the Customer on an “as is” basis. Nothing in this agreement excludes the liability of Help Out Hospo: for death or personal injury caused by Help Out Hospoâ€™s negligence for fraud or fraudulent misrepresentation. Help Out Hospo shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement
9.3 Limitation of Remedy. In no event will Help Out Hospo, its affiliates, licensors or suppliers, or any of their officers, directors, employees, shareholders, agents or representatives be liable to Company, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on contract, tort, negligence, strict liability, products liability or otherwise.
9.4 Maximum Liability. In no event shall Help Out Hospoâ€™s liability for any damages to Company or to any other person or entity regardless of the form of action, whether based on contract, tort, negligence, strict liability, products liability or otherwise, exceed the pro-rata portion of fees received by Help Out Hospo from Company during the three (3) month period immediately preceding the events giving rise to such action.
10.1 Help Out Hospo Indemnification. Help Out Hospo shall indemnify, defend, and hold harmless Company and their officers and End Users against any third-party claim that (i) the Help Out Hospo Software infringes any patent, copyright, or trademark, or misappropriates any trade secret, or (ii) Help Out Hospo has violated Section 7.2 of this Agreement. If any Help Out Hospo Software becomes, or in the Help Out Hospoâ€™s opinion is likely to become, the subject of a claim of infringement, Help Out Hospo may, at its sole option, (i) obtain for Company the right to continue using the Help Out Hospo Software; (ii) replace or modify the affected Help Out Hospo Software so that it becomes non-infringing while providing substantially equivalent functionality; or (iii) if such remedies are not available on commercially reasonable terms as determined by Help Out Hospo, terminate the license or Subscription Services for the affected portion of the Help Out Hospo Software and refund any prepaid subscription fees for the affected portion of the Help Out Hospo Software. Notwithstanding any other terms in this Section, Help Out Hospo shall have no liability for infringement claims and Company shall defend, indemnify, and hold harmless Help Out Hospo if the alleged infringement is based on or arises from (a) combination or use of the Help Out Hospo Software with hardware, software, or other materials not provided by Help Out Hospo, (b) the modification of the Help Out Hospo Software by anyone other than Help Out Hospo or at Help Out Hospoâ€™s direction, (c) the use of the Help Out Hospo Software not in accordance with the Documentation or this Agreement, or (d) the use of other than the then most current version of the Help Out Hospo Software if the use of the most current version of the Help Out Hospo Software would have eliminated the infringement. The foregoing states Help Out Hospoâ€™s entire liability and Companyâ€™s exclusive remedy for any claim of infringement.
10.2 Company Indemnification. Company will indemnify, defend, and hold harmless Help Out Hospo against all claims, actions or proceedings, arising out of any claim that: (i) any Company Software, Marks, or Materials provided by Company or its End Users or inputted into the Help Out Hospo Software, or the permitted use of the same by Help Out Hospo, infringes or violates any third party patent, copyright or trade secret right; (ii) Companyâ€™s unauthorized use or reproduction of the Help Out Hospo Software, the Customized Software, or any other Additional Services; or (iii) Companyâ€™s violation of Section 7.2 of this Agreement.
10.3 Indemnification Obligations. The indemnification provided in Sections 10.1 and 10.2 is conditioned on (i) the party to be indemnified (â€œIndemnified Partyâ€) giving the indemnifying party (â€œIndemnifying Partyâ€) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Partyâ€™s expense.
11.0 TERM AND TERMINATION.
11.1 Initial Term. This Agreement shall commence on the Effective Date indicated on the first executed Order Form (the â€œFirst Order Formâ€) between Company and Help Out Hospo. This Agreement shall continue through the Initial Term indicated on the First Order Form and through any Renewal Terms indicated on the First Order Form or amendments to the First Order Form, or any successive order form (each, an â€œOrder Formâ€) executed between Company and Help Out Hospo. Except as otherwise specified in an Order Form, this Agreement will automatically renew for additional periods equal to the expiring term, unless either party gives notice of non-renewal at least sixty (60) days before the end of the expiring term. Unless earlier terminated as provided herein, this Agreement shall continue in full force and effect until the termination or expiration of the Initial Term or last Renewal Term in effect (the â€œAgreement Termâ€).
11.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below:
(a) By either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party;
(b) by either party with immediate effect from the date of service on the other party of written notice if: (i) such other party becomes unable to pay its debts within the meaning of section 95A(1) of the Corporations Act 2001 (as amended); (ii) such other party ceases or threatens to cease to carry on the whole or a substantial part of its business; any distress or execution shall be levied upon such other partyâ€™s property or assets, or any of its property is subject to the exercise of commercial rent arrears recovery; (iii) such other party shall make or offer to make any voluntary arrangement or composition with its creditors; any resolution to wind up such other party (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) shall be passed, any petition to wind up such other party shall be presented and not withdrawn or dismissed within seven days] or an order is made for the winding up of such other party; (iv) such other Party is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it; (v) a receiver or administrative receiver is appointed over all or any of such other partyâ€™s undertaking property or assets; (vi) any bankruptcy petition is presented or a bankruptcy order is made against such other party; an application is made for a debt relief order, or a debt relief order is made in relation to the other party; and (vii) such other party is dissolved or otherwise ceases to exist; (c) By Help Out Hospo if any amounts owed remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to Company. (d) By Help Out Hospo immediately in the event of any verbal or written abuse (including threats of abuse or retribution) by any Company End User, employee, officer, agent, or representative directed toward any Help Out Hospo customer, employee, or officer.
11.3 Effect. Upon termination of this Agreement for any reason, all rights and licenses granted by Help Out Hospo hereunder to Company will immediately cease.
11.4 Survival. Termination of this Agreement or any Order will not affect the provisions regarding Help Out Hospoâ€™s or Companyâ€™s treatment of Confidential Information and Trade Secrets, provisions relating to the payments of amounts due, indemnification provisions, the provisions of Section 12, and provisions limiting or disclaiming Help Out Hospoâ€™s liability, which will survive such termination.
12.1 Governing Law. The Agreement (together with the Order, Schedules, if any, and these General Terms and Conditions) is governed by the laws of the State of New South Wales (Australia), except to the extent to which Commonwealth legislation may override such laws. In the event of any conflict between this Contract and any Commonwealth and/or State legislation, the provisions of such legislation will prevail.
12.2 Jurisdiction. In the event of a dispute arising from the interpretation and/or application of the Agreement or in connection thereto, the New South Wales Court system shall have exclusive jurisdiction.
12.3 International Conventions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the parties hereunder.
12.4 No Conflicts. Notwithstanding the content of any Company purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
12.5 Communications. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by facsimile (with confirmation copy available upon request), to the respective addresses set forth either on the First Order Form, or on the first page of this Agreement, as may be amended by the parties by written notice to the other party in accordance with this Section.
12.6 Assignment. Company may not assign its rights and duties under this Agreement without the prior written consent of Help Out Hospo. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
12.7 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
12.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
12.9 Modifications. Company agrees that Help Out Hospo may modify these Terms and Conditions from time to time, and that Companyâ€™s rights under the Agreement are conditioned on an ongoing basis with Companyâ€™s compliance with the then-current version of the Terms and Conditions. Help Out Hospo will notify Company of any material revisions or modifications to the Terms and Conditions by (i) posting a notice on Companyâ€™s web space on the Help Out Hospo website for 30 days following any revisions or modifications to the Terms and Conditions, or (ii) providing direct notice of such changes in a communication to Company. By continuing to use the Services following receipt of such notice, Company consents to the revised or modified Terms and Conditions. Company further agrees that an authorized representative of Company will visit Companyâ€™s web space on the Help Out Hospo website at least once every 30 days to review any notices of revisions or modifications to the Terms and Conditions.
12.10 Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy
12.11 Third Party Rights. The parties do not intend any third party to have the right to enforce any provision of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
1.0 â€œActive Userâ€ means an End User that accesses the Software Services and accesses any online course during an applicable billing period (described in Section 3.8), regardless of the number of accesses during such billing period, the number of courses accessed during such billing period, or whether or not such End User completes the online course.
2.0 “Company Software” means the software and any other Materials owned or used by Company to access the Software Services.
3.0 “Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, or Derivative Works to the referenced software or other Materials.
4.0 â€œHelp Out Hospo Appsâ€ means applications that allow the extension of some functionalities, additional functionalities, advanced architecture capabilities, and integration between third-party systems and the Software Services.
5.0 “Help Out Hospo Server” means the hardware platform or network system owned or operated by, or on behalf of, Help Out Hospo where the Help Out Hospo Software resides and is accessed by Help Out Hospo customers via an internet connection to the server using an approved Web browser.
6.0 â€œHelp Out Hospo Softwareâ€ means the Internet-based Help Out Hospo Software products and related Services provided by Help Out Hospo, that are more particularly described on an Order and that are accessible to Company and its End Users via a Web browser through the Internet for their use of the Software Services.
7.0 “Documentation” means the user documentation and any other operating, training, and reference manuals relating to the use of the Services, as supplied by Help Out Hospo to Company, as well as any Derivative Works thereof.
8.0 â€œE-Learning Platformâ€ means the online training platform provided by Help Out Hospo as part of the
9.0 â€œEnd Userâ€ means all of Customerâ€™s employees and individual third parties who are authorized by Customer to use the Software Services and have been provided a password for the same.
10.0 â€œIntellectual Property Rightsâ€ means any and all rights to exclude, existing from time to time in any jurisdiction, under patent law, copyright law, moral rights law, trade-secret law, semiconductor chip protection law, trademark law, unfair competition law, or other similar rights.
11.0 â€œMarksâ€ means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
12.0 “Materials” means data, materials, pictures, documentation, audio, video, artistic works, writings, and other works of authorship.
13.0 “Services” means all services provided by Help Out Hospo or by Help Out Hospo under this Agreement including the Software Services, Additional Services, Helpdesk Services, and Professional Services.