1. DEFINITIONS & INTERPRETATION
In this document the following terms will have the following meanings unless the contrary intention appears:
‘Agreement’ means the agreement between GoWeigh and the Customer constituted by this document.
‘App’ means the ‘GoWeigh Connect’ app developed by GoWeigh and described in the Schedule.
‘App Data’ has the meaning set out in clause 13.1.
‘App Updates’ means the updates described in Clause 7.1.
‘Authorised Users’ means the Customer and its employees,contractorsand customers.
‘Commencement Date’ means the date set out in the Particulars.
‘Confidential Information’ has the meaning set out in clause 11.
‘Customer’ means the customer described in the Particulars.
‘Fees’ means the fees set out in the Particulars.
‘GoWeigh’ means GoWeigh Pty Ltd ACN 616 656 681 of 44 Cowie Street, North Geelong, Victoria 3215.
‘GST’ means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement.
‘Hardware’ means the hardware set out in the Schedule.
‘Intellectual Property’ has the meaning set out in clause 12.
‘Licence Period’ means the period set out in the Particulars unless extended or terminated by the parties.
‘Maintenance Services’ means the services described in Clause 8.1.
‘Particulars’ means the particulars set out on page 1 of this document.
‘Personal Information’ means information that can be used to identify a person, including without limitation, names, addresses, telephone numbers and email addresses.
‘Technical Support’ means the support described in Clause 9.1.
2. GRANT OF LICENCE & SERVICES
In consideration of and subject to the payment of the Fees by the Customer, GoWeighgrants to the Customer a non-transferable, non-exclusive licence for the Authorised Users to use the Appand the Hardware during the Licence Period in accordance with the terms and conditions of the Agreement.
The Customer will:
(a) only allow the App and the Hardware to be used by the Authorised Users for the purpose of the Customer’s business and for no other purpose; and
(b) ensure that the Hardware isprotected at all times from misuse, destruction or any form of unauthorised use.
The Customer will follow all reasonable instructions given by GoWeigh from time to time with regard to the use of the App and the Hardware by the Authorised Users.
Ownership of the App and the Hardware will at all times vest in GoWeigh and nothing in this Agreement operates to transfer any Intellectual Property Rights or proprietary rights in the App or the Hardware to the Customer.
3. USE OF APP
GoWeigh will provide the Customer with the following information and assistance on the Commencement Date or at such other times as agreed between the parties in writing:
(a) all technical specifications required for access to and use of the App and the Hardware by the Authorised Users including supported platforms, connectivity and security;
(b) all technical advice and assistance as is reasonably required by the Customer to enable the Customer to use the App and the Hardware; and
(c) all usernames and passwords required by the Customer to enable access to the App by the Authorised Users.
GoWeigh reserves the right to make such amendments or modifications to the App and the Hardware as required by law or which GoWeigh, in its sole discretion, decides are in the interest of quality, efficiency and security of the App.
4. USE OF APP
The Customer is responsible for obtaining and maintaining all equipment, computer hardware (other than the Hardware) and software and all power and telecommunications services required by the Customer to access and use the App and will ensure that all such equipment and services comply with the technical specifications provided by GoWeigh.
GoWeigh reserves the right to give such instructions or directions to the Customer concerning access to, and use of, the App by the Authorised Users as required by law or which GoWeigh, in its sole discretion, decides are in the interest of quality, efficient and security of the App as a whole.
5. AVAILABILITY OF APP
GoWeigh will use its best endeavours to maintain the reliability and efficiency of the App subject to:
(a) scheduled downtime for Maintenance Services or other interruptions to service specified in this Agreement; and
(b) unscheduled interruptions to the availability of the App due to factors beyond the control of GoWeigh including any actions of the Customer or third parties, including telecommunications or utility providers.
The Customer will communicate any difficulties encountered with the App to GoWeigh as soon as is reasonably practicable following detection.
The Customer acknowledges that the speed of response from the App is dependent on the Customer’s internal connection and performance of the Service may be affected by such external factors as speed of connection and infrastructure bandwidth from the Customer’s equipment and the number of users on the connection.
GoWeigh takes no responsibility for any delay, malfunction, non-performance or other degradation of the App caused by or resulting from any alteration, modifications or amendments of the App or the Hardwaremade by the Customer.
In the event of total systems failure resulting in the disruption of the App, GoWeigh will endeavour to repair and reinstate the App within twenty four (24) hours of detection depending on the severity of the failure.
6. SUSPENSION OF ACCESS
Subject to Clause 6.2, GoWeigh may temporarily suspend access to the App:
(a) to carry out the Maintenance Services;
(b) to carry out modifications or updates to the App, including the uploading of AppUpdates;
(c) to preserve data and integrity;
(d) in the event of a security breach;
(e) if the App malfunctions; or
(f) if the Customer fails to pay the Fees in accordance with the terms of this Agreement.
GoWeigh will not be liable to the Customer, its officers, employees, contractors or agents or any third party whatsoever as a result of taking the action referred to in Clause 6.1 where such action is taken on a view which is formed on a reasonable basis by GoWeigh.
7. APP UPDATES
GoWeigh may, in its sole discretion, make enhancements, updates or new releases of the App available from time to time in order to, inter alia, enhance or improve the functionality or operation of the App or comply with legislative requirements (‘App Updates’).
GoWeigh will upload any App Updates for access and use by the Customer as soon as reasonably practicable following the creation and general release of such App Updates by GoWeigh.
The Customer acknowledges that additional downtime over and above the levels specified in Clauses 6 and 8 may apply in the event thatGoWeigh is required to upload App Updates.
The App Updates will be provided to the Customer free of charge subject to all Fees having been fully paid by the Customer.
Use of the App Updates by the Customer will be subject to the same terms and conditions as use of the App under the Agreement.
8. MAINTENANCE SERVICES
GoWeigh will perform such routine maintenance services as it considers necessary to ensure the proper functioning of the App during the Licence Period including:
(a) the operation and general maintenance of any applicable server;
(b) reviewing the App’s functionality on a regular basis and applying App Updates where appropriate; and
(c) performing regular security and maintenance checks for evidence of security breaches, software malfunction and resource limit warnings.
The Customer acknowledges that it is solely responsible for the support and maintenance of any computer hardware and non-GoWeigh software operated by the Customer.
h9. TECHNICAL SUPPORT
GoWeigh will provide the Authorised Users with basic technical support in relation to the App during the Licence Period (‘Technical Support’).
The Technical Support is available to the Authorised Users by contacting GoWeigh in the manner set out in the Schedule.
When reporting faults to GoWeigh, the Authorised Users must provide an accurate description of the problems encountered including error messages and an accurate impact of the problem in order to facilitate the necessary corrective action by GoWeigh.
10. PAYMENT OF FEES
The Customer will pay the Fees and any other fees due and payable to GoWeigh under this Agreement in the manner specified in the Schedule or as otherwise invoiced to the Customer by GoWeigh from time to time.
The Customer acknowledges and agrees that:
(a) the Fees are payable in respect of the use of the App by the Customer and provision of the Hardware;
(b) GoWeigh reserves the right to reviewsubscription Fees applicable to the use of the App from time to time, but no more than once in each period of 12 months. GoWeigh will notify the Customer of any variation in the subscription Fees.
Where applicable, GST and any other taxes, duties or levies will be paid by the Customer at the then prevailing rate.
The Customer must provide a direct debit authority to GoWeigh in relation to payment of the subscription Fees, which enables GoWeigh to debit the Customer’s nominated account on a monthly basis for subscription Fees.
11. CONFIDENTIAL INFORMATION
A party shall treat all confidential information disclosed by the other party as confidential and shall not, without the prior written consent of the disclosing party:
(a) disclose or permit the same to be disclosed to any third party (except to the extent required by law, a stock exchange or in connection with legal proceedings relating to this Agreement, but only after first notifying the other party to give it an opportunity to protect the Confidential Information) and agree to take all reasonable steps to maintain the confidentiality of the Confidential Information; or
(b) use the Confidential Information for any purpose other than that for which it is given.
The confidentiality obligations under this clause shall survive the expiry or termination of this Agreement.
12. INTELLECTUAL PROPERTY RIGHTS
Intellectual Property Rights means:
(a) patents, copyright, circuit layout rights, designs, trademarks and confidential know-how; and
(b) any application or right to apply for any of the rights referred to in paragraph 12.1(a).
GoWeigh owns and retains, and the Customer acknowledges that GoWeigh owns and retains all Intellectual Property Rights in the Hardware, the App and the App Updates and any copies thereof including, without limitation, any modifications or improvements to, or customisation of, the Hardware or the App carried out by GoWeigh, the Customer or any third party pursuant to the Agreement excluding any third partylicences used in operation of the App.
Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by GoWeigh, the Customer must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the App or the Hardware in any way for itself or for others or permit such act to be done.
The Customer warrants that it will:
(a) follow all reasonable instructions given by GoWeigh from time to time regarding GoWeigh’s Intellectual Property Rights; and
(b) not do anything to diminish the value of, or contest in any way, GoWeigh’s Intellectual Property Rights.
The Customer agrees that it will inform GoWeigh immediately if the Customer becomes aware that any Intellectual Property Rights of GoWeigh are being infringed, or may be infringed, by any third party.
13. OWNERSHIP AND USE OF DATA
Ownership of all data (other than Personal Information) created from the use of the Appby the Customer (‘App Data’)will be jointly owned by the Customer and GoWeigh. Personal Information will be owned by the Customer.
Each party may collect, store, use, licence and sell App Data for any purpose associated with its business.
14. APP OPERATION
While all due care has been taken, GoWeigh does not warrant that the operation of the App will be uninterrupted or error free or that any third party components of the App will be accurate or error free or that the App will be compatible with any application, program or software not specifically identified as compatible by GoWeigh.
GoWeigh’s obligation and the Customer’s exclusive remedy are limited, in GoWeigh’s absolute discretion, to:
(a) GoWeigh, at its own expense, using all reasonable endeavours to rectify any nonconformance of the App or the Hardware by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time; or
(b) a refund of the Fees paid if, in GoWeigh’s reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.
The Customer acknowledges and accepts that:
(a) it is the Customer’s sole responsibility to ensure that the facilities and functions of the App and the Hardware meet the Customer’s requirements; and
(b) GoWeigh does not purport to provide any legal, taxation or accountancy advice by providing the App under this Agreement.
GoWeigh will not be liable for any failure of the App to provide any function not represented by GoWeigh or any failure attributable to:
(a) any modification to the App or the Hardware other than by GoWeigh;
(b) accident, abuse or misapplication of the App or the Hardware by the Customer;
(c) use of the App or the Hardware with other software or equipment without GoWeigh’s written consent;
(d) use of other than the latest, unaltered current release of the App as provided by GoWeigh; or
(e) use of the Appother than in accordance with this Agreement.
14.5 If, upon investigation, a problem with the App is determined not to be GoWeigh’s responsibility, GoWeigh may invoice the Customer immediately for all reasonable costs and expenses incurred by GoWeighin the course of or in consequence of such investigation.
15. LIMITATION OF LIABILITY
Except in relation to liability which is cannot be excluded at law, GoWeighhas no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Customer’s access to, or use of, the App, the Hardware or any other goods or services supplied pursuant to this Agreement including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill, or in respect of a failure or omission on the part of GoWeigh to comply with its obligations under this Agreement.
The Customer agrees that the liability of GoWeigh to the Customer whether for breach of contract, negligence or any other claim whatsoever arising out of the provision of the App or Hardware or any services under this Agreement shall to the full extent permitted by law be limited to the Fees actually paid by the Customer to GoWeigh in the preceding 12 month period.
Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
(a) the other party breaches any of its obligations under this Agreement capable of remedy and fails to remedy that breach within fourteen (14) days after receiving notice requiring it to do so;
(b) the other party breaches any of its obligations under this Agreement which are incapable of remedy; or
(c) the other party becomes insolvent or a receiver, receiver and manager, administrator, provisional liquidator or similar person is appointed over all or any of the other party’s assets.
17. ACTION ON TERMINATION
Upon the expiry or termination of this Agreement:
(a) the licence granted to the Customer to use the App and the Hardware will immediately terminate;
(b) GoWeigh will immediately terminate the Customer’s connection to the App and cease providing all services to the Customer under this Agreement including without limitation the App Updates, the Maintenance Services and the Technical Support; and
(c) the Customer will immediately:
(i) cease to access and use the App and the Hardware;
(ii) return the Hardware to GoWeigh or otherwise deal with same in the manner specified by GoWeigh in writing;
(iii) cease to use all Intellectual Property Rights of GoWeigh; and
(iv) pay all sums owing to GoWeigh pursuant to this Agreement, including, without limitation, the total Fees owing for the current Licence Period.
(d) GoWeigh may, at any time after 90 days from termination, delete the Customer’s data from its system.
Termination of this Agreement for any reason will not affect the accrued rights or remedies of either party.
18. FORCE MAJEURE
Neither party will be liable to the other for delay or failure to perform its obligations under this Agreement if such delay or failure is caused by any matter beyond its reasonable control or without its fault or negligence, including declaration of war, strikes, acts of God, riots, terrorism, pandemic, epidemic, compliance with Government laws and regulations, changes in legislation, delays in transit or power outages.
The Customer may not sub-licence, transfer or assign any of its rights or obligations under this Agreement without the prior written consent of GoWeigh.
GoWeigh may assign its rights and obligations under this Agreement to a third party subject to giving notice to the Customer.
20. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Victoria and each party agrees to submit to the non-exclusive jurisdiction of the courts of Victoria.
GoWeigh may amend these conditions at any time by posting an amended copy on GoWeigh’s website and providing a copy to the Customer. The Customer agrees to be bound by these conditions as amended.
The invalidity or enforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions.
The failure by GoWeigh to enforce, at any time or any period of time, any conditions shall not constitute waiver of such condition and shall in no way affect its right to enforce it.