It is our privilege to offer naveze services to you. This engagement presents a unique opportunity to launch your location/Map with a purpose built outdoor / indoor map with digital wayfinding that encourages visitors to spend more time and money with you. Through data-driven insights and communication.
naveze is used by 1,000’s people. Our software and services are based on broad industry experience and expertise accumulated over years of careful analysis and work. We create customised outdoor / indoor maps with digital wayfinding for locations / Maps that are innovative, customer orientated, and results driven.
These terms and conditions of service represent a binding Agreement between you, our Customer, and Business of Pursuits Pty Ltd t/as naveze (ABN 97 613 678 578), which applies to the creation and use of the naveze Map Software and Services.
The Agreement consists of the following documents:
- Terms & Conditions that apply to the development of the App and your Subscription.
- Map Specification and any Variation Quote which describe the Customer’s requirements for the App, its features and functionality.
- Data provided by the Customer.
- Orders if applicable.
- Scope of Works if applicable.
1. APPLICATION OF THIS AGREEMENT AND RELATIONSHIP OF THE PARTIES
- This Agreement commences on the Commencement Date and establishes the contractual terms that govern the creation of the App, the provision of the Definitions applicable in this Agreement are set out in Schedule 1.
Subscription and related products and services, and the Services by naveze to the Customer during the Term.
- Subject to earlier termination for default under clause 11 or by the mutual agreement of the parties, this Agreement will endure for the Term.
- If the Customer wishes to extend the Subscription for the Renewed Term, the Customer shall give a 20 days’ written notice of such extension to naveze prior to the expiration of the Initial Term.
- Subject to receipt of the extension notice by naveze as provided in clause 1.4, unless there is a material breach of this Agreement by either party which cannot be rectified, upon the expiration of the Initial Term the Subscription will continue on the same terms set out in this Agreement for the Renewed Term.
- Following the Renewed Term, the Subscription will continue on the same terms for a further term until it is terminated by either party at convenience on a 30 days’ written notice. Not consistent with schedule 2
- This Agreement constitutes the whole agreement between the parties and supersedes all correspondence and discussions, upon which neither party shall rely.
- This Agreement may be varied only by agreement in writing signed by both parties. Can we just make this automatic if the submit and order on the website and we accept the order?
- The parties are independent of each other and except as expressly permitted in this Agreement, the parties must not represent to any third party that the parties are principal and agent, employer and employee, partners or otherwise that one party is entitled to incur any liability on behalf of the other party.
- A party must not incur any debt or other liability on behalf of another party and must not attempt to purport to do so.
2. DEVELOPMENT, SUBSCRIPTION AND SERVICES
- naveze will create the App for the Customer in accordance with the Specification annexed to this Agreement as Annexure “A”.
- naveze will commence creating the App on receipt of the initial part of the Development Fee as specified in clause 5.2(a). not always applicable?
- The Customer shall provide to naveze such Data as per annexure A and further instructions in addition to the Specification as may be necessary to complete the development of the App. Successful completion of the App is subject to naveze receiving timely, accurate and complete Data and instructions from the Customer.
- naveze shall provide the Customer, on request, with written or verbal reports (as directed by the Customer) regarding the present status of development of the App.
- naveze will use its best endeavors to complete the development of the App by the end of the Development Period but provides no warranty about the timely completion of the App and bears no liability if the development of the App runs overtime.
- If the Customer requires any variation to the specification (we don’t vary the app code), whether during the development stage or post-development, and naveze agrees that the variation can be implemented, naveze will provide a Variation Quote to the Customer for such variation. Upon acceptance of the Variation Quote by the Customer, naveze will execute or implement such variations as stated in the Variation Quote subject to payment of the Variation Fee (if any) as provided by clause 5.3. naveze promises a reasonable turnaround time on variation requests and will endeavor to include all variation requests in the App as possible.
- If the parties cannot agree on the Variation Quote or any variation to the App and the Specification, then the process set out in clause 11.3 will apply.
- Upon completion of the development of the App, naveze will provide access to the App to the Customer as set out in clause 3.4.
- The Subscription will commence on the successful completion of the Acceptance Test as provided by clause 3.5 and will end on the expiration of the Subscription Term.
- During the Subscription Term, naveze will provide access to the Customer to use the App, any Editions and Add-Ons as ordered by the Customer.
- The Customer may request Editions to the App by submitting an Order to naveze.
- naveze will add the Editions within 5 business days of receipt of the Order from the Customer.
- The Customer may request the provision of Add-Ons in addition to the Subscription by submitting an Order to naveze.
- naveze will provide access to Add-Ons requested by the Customer in the Order upon receipt of payment of the applicable Add-On Fee by the Customer.
- naveze can modify and change features and functionality of the Subscription, Editions and Add-Ons in its own discretion from time to time, including by adding or deleting features and functions, in an effort to improve functionality and user experience. naveze will notify the Customer of any such modifications and changes promptly.
- Nothing in this Agreement shall affect naveze’s right to exercise its own judgement and utilise its creative skills as it considers most appropriate in order to develop the App in accordance with the Specification and any variations.
- The terms of this Agreement will also apply to the provision of Services, should the Customer wish to engage or has engaged naveze to provide such Services.
- If the Customer wishes to engage naveze to provide specific Services, the Customer shall place an Order with naveze specifying what Services it requires.
- Upon receipt of the Order, naveze will issue a Scope of Works to the Customer.
- Once the Customer approves the Scope of Works, naveze will provide Services in accordance with the Scope of Works, and the Customer shall pay for the Services to naveze as specified in the Scope of Works or as agreed between the parties.
- naveze will cease providing access to the Customer to the App and the Customer will have no further access to the Subscription, Editions, Add-Ons, Services and any data and information associated such things upon the expiration of the Subscription Term.
3. TESTING, TRAINING AND WARRANTY
- naveze warrants that the App will be created in accordance with the Specification and will be free from defects which are a direct result of naveze’s error or fault.
- The warranty provided in clause 3.1 is effective during the Warranty Period.
- Not with standing clause 3.1, the Customer acknowledges that system degradation as a result of changes in technology is not covered under this warranty.
- Upon completion of the development of the App, naveze will:
(a) provide the Training to the Customer; and
(b) provide access to the App to the Customer for the purpose of conducting the Acceptance Test.
- Upon receipt of access to the App, the Customer shall conduct the Acceptance Test. The Acceptance Test shall be completed as soon as practicable and no later than within a 20 days’ period of the provision of the Training by naveze. Following this 20 days’ period, unless naveze receives any complaint from the Customer, the Customer will be deemed to have been successfully conducted the Acceptance Test. naveze will rectify any features of the App that do not conform with the Specification and any agreed variations as discovered during the Acceptance Test.
- Following successful completion of the Acceptance Test as provided by clause 3.5, naveze will activate the App.
- If the operation of the App is found to be defective or non-conforming with the Specification or any agreed variation due to an error or fault of naveze, and the Customer notifies naveze of such defect or non-conformity during the Warranty Period, naveze shall immediately rectify the defect or non-conforming features at its own expense.
- The Customer can submit any complaints to naveze with respect of any defect in the App during the Warranty Period.
- naveze will rectify the defect in the App and/or make such necessary modifications and changes to the App only if:
(a) the defect is a direct result of an error or fault of naveze; or
(b) the App features and functionality do not comply with the Specification or any agreed variation.
4. ACCOUNT, HOSTING AND SERVICE SUPPORT
- The App will be hosted on naveze’s web hosting service. Monitoring of this service occurs twenty-four hours a day, seven days a week with email alerts sent to an on-call technicians should any problems occur. naveze web hosting servers are firewalled, backed up daily with monthly off-site rotation.
- naveze guarantees 99.8% uptime for the App.
- naveze will provide a dedicated Customer service support which can be accessed through a telephone number designated by naveze between 8 am and 6 pm daily.
- Upon completion of the Acceptance Test, the Customer shall register an Account and use its login details and password to access and manage the Account and the Subscription. (they actually need the account to get access to the test version )
- In order to create an Account, the Customer needs to provide the following information:
(a) Customer’s details, including the full entity name, ABN, business address and
(b) Email, full name, position and contact details of the Admin User;
(c) Any other information which may be required.
- The Customer warrants and represents that any information submitted or used on its Account is true, accurate, reliable, complete and current. Creating a fake Account or submitting inaccurate, incomplete or fabricated information is a material breach of this Agreement.
- The Customer agrees, warrants and acknowledges that only an authorised representative of the Customer will be allowed to be the Admin User.
- The Admin User:
(a) will have the responsibly for administering and managing the Account on behalf of the Customer;
(b) may invite other Users, who must be employees or representatives of the Customer, to use the Account.
- Any activity, action, act or omission by the Admin User or any User are deemed to be authorised by the Customer.
- The Customer is responsible and liable to naveze for any activity, action, act or omission of the Admin User and any User.
- The Customer warrants and acknowledges that it:
(a) has authorised the creation of its Account and any activity of the Admin User, any User or any other person on the Account;
(b) has authorised access to and use of the Subscription by the Admin User and any User; and
(c) bears full liability and responsibility for any activity on its Account.
- naveze will have access to the Customer’s Account and will store the details of and information relating to the Customer’s Account.
- When the Customer creates an Account, it shall be the Customer’s obligation to maintain the security of all devices from which it accesses its Account and confidentiality of the login information.
- The Customer is liable for all activities on its Account. If the Customer suspects any unauthorised access or activities on its Account, it must immediately review the security of devices and the Account and inform naveze about such unauthorised access to the Customer’s Account.
5. FEES AND PAYMENT
- For each App, naveze will charge the Customer, and the Customer agrees to pay:
(a) the Development Fee;
(b) the Activation Fee; and
(c) the Subscription Fee,
as specified in Schedule 2.
- The Development Fee is payable as follows:
(a) the initial part equal to 80% of the total Development Fee is payable upon receipt of the relevant invoice from naveze and before the Map App creation can proceed; and
(b) the balance of 20% of the total Development Fee is payable upon successful completion of the Acceptance Test as provided by clause 3.5.
- The Variation Fee is payable by the Customer upon acceptance of the Variation Quote.
- The Activation Fee and the Subscription Fee are payable upon successful completion of the Acceptance Test. No subscription is paid upfront.
- If the Customer requests the additional Maps, or editions, naveze will charge and the Customer shall pay for the Maps and Editions according to the scale of the Edition Fees specified in Schedule 3 upon delivery and implementation of the Editions by naveze.
- If the Customer requests the provision of Add-Ons (new maps or upgrading of maps from small to medium), naveze will charge and the Customer shall pay appliable Add-On Fees as specified in Schedule 3.
- Unless otherwise agreed in writing, naveze will charge the Customer, and the Customer shall pay to naveze, for Services provided to the Customer in accordance with the Scope of Works.
- naveze may vary the Subscription Fee, the Edition Fees and the Add-On Fees by giving the Customer no less than 30 days’ notice prior to the expiration of the Initial Term, the Renewed Term and any further term before charging the Customer the varied Fees, such varies Fees to apply only from the start of the Renewed Term or any further term.
- naveze may invoice the Customer on an interim basis for progress payments, including for such disbursements and expenses as naveze incurs with the Customer’s prior approval.
- naveze will render a tax invoice to the Customer for applicable Fees and disbursements payable under this Agreement.
- The Customer shall pay naveze’s invoices in full on the date stated on the relevant invoice.
- Interest accrues and is payable by the Customer on any outstanding amounts and monies owing by the Customer to naveze. Interest accrues from the date when monies become due and is payable at the annual rate which is 5% above the Reserve Bank of Australia’s Cash Rate. Interest payable under this provision shall accrue daily and be capitalised monthly.
- Payment must be affected by the Customer by electronic funds transfer to a bank account nominated by naveze, unless the parties agree otherwise.
- If the Customer fails to make payment of any monies owing to naveze under this Agreement as they fall due, naveze may at its option:
(a) suspend access to the Map App, any Editions and use of the Account and the Subscription by the Customer.
(b) suspend delivery of Services.
(c) suspend access to Add-Ons.
(d) charge the Customer interest on the outstanding amount as provided by clause 5.12,
until all monies owing to naveze are paid. The rights or the exercise of rights under this clause does not prevent the exercise by naveze of the right of termination under clause 11, and any other rights or remedies under this Agreement, at law or in equity.
- All payments by the Customer to naveze under this Agreement will be made without any offsets or deductions of any kind unless such offsets or deductions have been agreed to or authorised by naveze.
6. USE OF MAP APP SUBSCRIPTION AND CUSTOMER’S OBLIGATIONS
- The Customer shall have the following responsibilities:
(a) provision of the complete, correct and accurate Map Specification, any variations and Orders.
(b) provision of all Data and instructions to be incorporated into the Map App.
(c) provision of all logos, designs, graphic and related materials to be incorporated into the Map App; and
(d) provision of any other information, ideas or suggestions which are to be expressly considered by naveze in creating the Map App.
- The Customer represents, acknowledges and warrants to naveze that:
(a) it has read and accepted this Agreement;
(b) it has full power and legal capacity to enter into this Agreement;
(c) a representative who entered into this Agreement for and on behalf of the Customer has a full authority to enter into the Agreement and bind the Customer by these terms and conditions;
(d) a representative who provides any documentation and instructions to naveze referred to in this Agreement has a full authority to provide such documentation and instructions on behalf of the Customer;
(e) the Map Specification, any variations, Orders, Data and any instructions that the Customer has provided are true, accurate and correct and do not infringe Intellectual Property rights of any third parties;
(f) the Map Specification, any variations, Orders, Data and any instructions that the Customer has provided are safe and do not expose any person to the risk of death, injury or illness;
(g) it will not make any permanent or enduring copy of the Map App, its content or its computer code, or reverse engineer or compile the Map App or the Software;
(h) it will use the Map App and the Subscription in a lawful manner, in accordance with the Training provided by naveze and will follow applicable rules and laws (including privacy laws) when accessing and using the Map App and the Subscription;
(i) it will not make any statements and representations about the Map App in any way contrary to any laws including any health and safety regulations, consumer legislation, environment, dangerous goods and hazardous substances requirements;
(j) it will not disparage or permit disparagement of naveze, the Map App and Services either through or by its staff, contractors, agents or representatives, if any;
(k) it will not mislead any person or make any misrepresentation (whether deliberate or otherwise) concerning the Map App, naveze or any other matter of relevance to this Agreement;
(l) it will notify naveze immediately in writing if it becomes aware of any Claim, dispute or allegation in respect of the Map App;
(m) it will ensure that the Admin User and any Users will maintain sufficient technical understanding in the operation and features of the Map App and, to that end, attend the Training provided by naveze; and
(n) all terms, conditions and warranties other than those expressly contained in this Agreement are excluded.
- In addition to the promises and acknowledgements stated above, the Customer agrees:
(a) to use the Map App and the Subscription at its own risk;
(b) to provide the use of the Map App to the Map Users safely and in a manner that does not expose any person to the risk of death, injury or illness;
(c) to keep its Account password and credentials secret;
(d) not to share an Account with any third party;
(e) not to transfer any part of its Account or give access to it to any third party which is not engaged by the Customer in relation to the Map App;
(f) that it is responsible for anything that happens through its Account unless it closes it or reports misuse;
(g) to keep all Account information up to date;
(h) to permit naveze to include its logo within the Map App; and
(i) that naveze may send you notices and messages through the Account, email and contact information.
- The Customer agrees to indemnify and keep indemnified naveze against any loss or damage caused by the Customer’s breach of warranties contained in this clause.
- The Customer must comply with the Privacy Act 1998 (Cth) as amended from time to time and with any directions concerning privacy of any persons whose personal information may be provided to or received from naveze or through the use of the Map App. For the avoidance of doubt, the Customer must comply with the Privacy Act whether or not the Privacy Act actually applies to the Customer.
8. INTELLECTUAL PROPERTY AND ADVERTISING
- The parties agree and acknowledge that:
(a) all proprietary rights and Intellectual Property rights in the Data and any information, material and documentation provided by the Customer remain with the Customer or the relevant rightful owner; and
(b) all proprietary rights and Intellectual Property rights in the Map App, Editions, Add-Ons and the Software belong to and remain with naveze.
- The Customer agrees that its rights rest in contract only and nothing in this Agreement confers any contractual or proprietary right upon the Customer to use or otherwise deal with or dispose of any Intellectual Property of naveze and that all goodwill relating to use of such Intellectual Property shall accrue to naveze.
- naveze grants a non-exclusive licence to the Customer, with no right to sub-license, for the duration of the Term to:
(a) use and access the Map App, Editions, Add-Ons and the Subscription;
(b) apply trade marks and names of naveze with reference to the Map App as necessary; and
(c) conduct promotional activities and publish advertising of the Map App using trade marks and names of naveze as necessary.
- The licence granted under 8.3 can be varied by naveze at any time and is withdrawn upon termination or expiration of this Agreement.
- naveze may from time to time in its discretion, at no cost to the Customer:
(a) provide the Customer with information and instructions relating to the use of and access to the Map App; and/or
(b) provide additional Trainings as to the use of and access to the Map App.
- Without limitation to the generality of the provisions of this clause, the Customer will ensure that no communication, advertising, marketing or promotional activity with respect of or in relation to the Map App and any features and functionality of the Map App contain any representation, statement or implication which:
(a) is defamatory;
(b) is false, misleading or deceptive;
(c) contains a misrepresentation of any kind;
(d) involves an unauthorised disclosure of Confidential Information of naveze or any person;
(e) infringes any law with respect to privacy;
(f) involves a contempt of court, breach of any court order or other legal obligation;
(g) involves an infringement of the Intellectual Property rights of naveze or any other any person; or
(h) does not fairly and accurately represent the specifications, use, capacity or features of the Map App.
- Each party, as a Recipient, acknowledges and agrees that:
(a) the Confidential Information is confidential and secret and that unauthorised disclosure of it to any third party shall cause substantial loss and damage to the Discloser which may include liability of the Discloser to a third party; and
(b) keeping the Confidential Information secret is for the reasonable protection of the Discloser’s legitimate business interests.
- Subject to clause 9.4, each party, as a Recipient, agrees to:
(a) keep the Confidential Information of the Discloser confidential and secret and not to disclose that Confidential Information or any part of it to a third party; and
(b) ensure that no unauthorised person gains access to the Confidential Information of the Discloser.
- A party must not, without the prior written consent of the other party, issue any press release or publicity statement or make any announcement or otherwise publish any statement concerning the subject matter of this deed or the fact that the parties have entered into or are considering entering into a commercial relationship.
- Despite clause 9.2, the Recipient may disclose Confidential Information if the disclosure is:
(a) legally compelled by a court or other authority of competent jurisdiction; or
(b) made to a legal adviser, patent attorney or other professional adviser to whom a copy of this deed is supplied.
- If clause 9.4(a) applies, the Recipient must:
(a) notify the Discloser immediately in writing of the relevant court or other order and provides copies of all relevant documents to the Discloser or its advisers as required by the Discloser;
(b) afford the Discloser and its legal advisers every opportunity to object to the disclosure; and
(c) if disclosure of the Confidential Information is compelled, make no disclosure more than is strictly necessary to comply with the relevant order or requirement.
- If clause 9.4(b) applies, the Recipient agrees that:
(a) it is vicariously liable to the Discloser for any act or omission of the adviser which would, had it been committed by the Recipient, have constituted a breach of this clause 9; and
(b) the Recipient must indemnify and keep the Discloser indemnified against any and all losses incurred by the Discloser arising from any act or omission of the adviser which would, had it been committed by the Recipient, have constituted a breach of this clause.
- Some legal obligations imposed by law cannot be excluded or limited. naveze does not purport to exclude or limit such liability.
- To the fullest extent permitted by law, naveze is not and will not be liable to the Customer in connection with this Agreement for:
(a) any damage, loss, liability, Claim or expense arising in connection with or in relation to downtime of the Map App;
(b) loss, use of, or changes to, the Data;
(c) any damage, loss, liability, Claim or expense caused to or brought by a third party against the Customer in connection with the use of and in relation to the Map App;
(d) any unauthorised access to the Customer’s Account or misuse of the Customer’s Data;
(e) any interruption or disruption of the services provided by the Map App;
(f) any amount that exceeds:
(i) the total fees paid or payable by the Customer to naveze under this Agreement; or
(ii) $5,000.00 (five thousand dollars),
whichever is lesser.
- naveze makes no warranty on the profitability of the use of the Map App and the Subscription.
- In no circumstances the parties will be liable to each other for consequential or indirect loss such as:
(a) loss of profit or anticipated profit;
(b) loss of business or opportunity;
(c) loss of revenue;
(d) loss of savings on overheads;
(e) loss arising from any breach of contract with a third party;
(f) loss of goodwill; and
(g) loss arising from business interruption.
- The Customer may, at its option, by notice in writing to naveze, immediately terminate this Agreement if:
(a) naveze commits a breach of a material clause of this Agreement;
(b) naveze commits a breach of any other term or warranty of this Agreement which is not rectified to the reasonable satisfaction of the Customer within thirty (30) days of the date of a notice by the Customer specifying the breach;
(c) naveze is subject to an Insolvency Map; and
(d) naveze is permanently unable to supply access to the Map App.
- naveze may, at its option, by notice in writing to the Customer, terminate this Agreement with immediate effect if:
(a) the Customer commits a breach of a material clause of this Agreement;
(b) the Customer commits a breach of any other term or warranty of this Agreement which is not rectified to the reasonable satisfaction of naveze within thirty (30) days of the date of a notice by naveze specifying the breach; and
(c) the Customer becomes subject to an Insolvency Map.
- If the Customer wishes to terminate the completion of the Map App prior to naveze completing the development of the Map App, or in the Map that the parties cannot agree on a variation to the Map App and the Variation Quote, either party may terminate this Agreement upon giving a written notice to the other party. If this clause applies, naveze is entitled to retain the initial part of the Development Fee as set out in clause 5.2(a) and any Variation Fees paid by the Customer. 50% of all fees please
- If the Map App is completed according to the Map Specifications and any variations and the Customer does not wish to proceed with the Subscription, the Development Fee is payable in full by the Customer as provided by clause 5.2 even if the Acceptance Test has not been conducted. All fees payable
- Upon expiry or termination of this Agreement by either party for any reason, and notwithstanding any delay or previous waiver of the right to exercise such option, naveze may demand the immediate payment to it in a lump sum by the Customer of:
(a) all monies owing or which might become owing by the Customer to naveze in respect of the Map App, any variations, Editions, Add-Ons, Subscription and Services delivered to the Customer; and
(b) any interest incurred and applicable as provided by clause 5.12.
- Upon expiry or termination of this Agreement by either party for any reason:
(a) naveze will delete the Map App and any Data;
(b) the Customer will have no further access and can no longer use the Map App, any variations, Editions and Add-Ons; and
(c) the Subscription ends with immediate effect
- Upon expiry or termination of this Agreement by either party for any reason the parties must immediately:
(a) cease using each other’s Intellectual Property; and
(b) return all copies of Confidential Information to the Discloser.
- The expiry or termination of this Agreement is without prejudice to any and all rights and remedies which had accrued to the benefit of the parties to the date of termination.
- The rights of termination contained in this Agreement are in addition to rights of termination that a party may have under the law.
- Without prejudice to any other provisions, all warranties, indemnities and provisions concerning Intellectual Property and confidentiality survive the expiration or termination of this Agreement.
- All consideration provided for a supply under this Agreement is calculated exclusive of GST unless the contrary is clear. If any such consideration is for the whole or any part of a taxable supply by the supplier, the amount of that consideration will be increased by an additional amount equal to the GST on that taxable supply. The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due or, if the supplier has to pay (or allow credit against) the relevant GST before then, the additional amount must be paid at that earlier time.
- If an amount of consideration under this Agreement is calculated as compensation or reimbursement for an expense, loss or liability of a supplier the consideration must be calculated after excluding any amount for which the supplier is entitled to an input tax credit as recipient of the item to which the expense loss or liability relates.
- A party is not obliged to make any payment for GST unless it is provided with a tax invoice which complies with the GST Act.
13. ASSIGNMENT, NOVATION, CHANGE OF CONTROL
- The Customer may not assign or novate this Agreement without the prior written consent of naveze, which consent may not be unreasonably withheld.
- naveze may assign or novate this Agreement by providing written notice to the Customer at any time.
- The parties must, from the date of this Agreement, hold the following policies of insurance:
(a) public liability insurance with the minimum amount of cover of $20 million for any single Map; and
(b) all other insurances that are prudent to the business of a part, for prudent amounts and on reasonable commercial terms.
- Any notice, approvals, request or demand or other communication (“notice”) to be given for the purpose of this Agreement must be in writing and must be sent by ordinary or registered mail or by courier. A notice must not be given by email unless expressly permitted under this Agreement. Notices must be sent to each party at the respective addresses specified in Schedule 4 or such other address that they may notify each other, in writing, from time to time.
- A notice given:
(a) personally will be served upon delivery; and
(b) by post will be regarded as having been served seven (7) days after posting;
15.3 A notice may be given by an authorised officer, employee, agent or legal advisor of the party giving the notice.
16. FURTHER ASSURANCES
- Each party must take all steps, execute all documents and do everything reasonably required by any other party to give effect to any of the transactions contemplated by this Agreement.
17. PROPER LAW
- This Agreement shall be created, performed, interpreted and enforced in accordance with the laws applicable in New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that place.
18. INTERPRETATION AND GENERAL
- References to the singular include the plural, and reference to a gender includes all other genders.
- A reference to a party includes that party’s successors and assigns.
- References to $ or dollars are references to Australian dollars unless otherwise specified.
- Reference to a person includes a corporation, a body corporate and an unincorporated association and vice versa.
- A party will not be deemed to have waived any right or remedy or the performance of any obligation under this Agreement unless it has expressly done so in writing signed by an authorised director or secretary.
- Every phrase, sentence, paragraph and clause in this Agreement is severable the one from the other despite the manner in which they may be linked together or grouped grammatically and if any phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reason whatsoever the remaining phrases, sentences, paragraphs or clauses as the case may be, are of full force and effect.
- Where this Agreement requires the consent, approval or permission of naveze, such consent may be given or withheld, as the case may be, in the absolute discretion of naveze and subject to such conditions as naveze may impose in its absolute discretion.
- Any indemnity given by a party under this Agreement:
(a) is not the exclusive remedy of the party holding the benefit of the indemnity, which party may at its option, in addition or in the alternative, pursue remedies at common law, in equity or under statute;
(b) is a continuing indemnity;
(c) will not be affected by any matter including without limitation, the termination, renewal or extension of this Agreement or any indulgence, waiver or other concession given by a party unless the party benefiting from the indemnity agrees in writing; and
(d) includes legal costs and disbursements on a full indemnity basis.
- This Agreement is binding on the successors in title and permitted assigns.
In this Agreement, unless the context otherwise requires:
Acceptance Test means a demonstration by naveze to the reasonable satisfaction of the Customer that the Map App complies in all respects with the Map Specification and any agreed variations.
Account means an online account created and registered by the Customer (or for and on behalf of the Customer) to access and manage the Subscription through the Software.
Activation Fee means a fee payable by the Customer to naveze upon the activation of the Map App as provided by clause and specified in Schedule 2. Don’t need
Add-Ons means additional features, functionalities and services in connection with or in relation to the use of the Map App as set out in Schedule 3.
Add-On Fees means fees payable for Add-Ons as specified in Schedule 3.
Admin User means a representative of the Customer who has the responsibility of creating and managing the Account for the Customer, and inviting, removing and managing access of other representatives of the Customer as Users of the Account.
Agreement means these Terms & Conditions, the Schedules, any Orders, Quotes and any Annexures, as varied in writing by the parties from time to time.
Annexure means an annexure to this Agreement.
Commencement Date is the date on which this Agreement commences as specified in Schedule 2.
Confidential Information means information that is confidential, secret or sensitive and which the Recipient knows or ought reasonably to know to be confidential, secret or sensitive:
(a) however the Recipient became privy to it and whether disclosed to the Recipient by the Discloser, its employees, agents or contractors;
(b) whether disclosed to the Recipient before or after the date of this deed;
(c) whether disclosed in oral or written form and if in written form in hard copy or electronically or recorded in any language or on any medium;
(d) whether designated as confidential by the Discloser or not and whether marked as confidential or not,
(e) terms and conditions of this Agreement;
(f) any fees payable under this Agreement;
and any information of the Discloser as follows:
(g) any and all data, documentation or information regarding business proposals, plans and business operations;
(h) trade secrets, know-how, inventions and ideas, technical data and specifications, formulae, processes, designs, methods, products and samples, models, prototypes, specimens, physical materials, testing methods, research and development results, information technology, systems and other technology or intellectual property, business methods, product development, marketing strategies, financial information, organisational structure, personnel, contractors, suppliers, clients and customers, customer lists, vendor and supplier lists, sales, pricing and internal performance information; and
(i) products, designs, drawings, plans, specifications, models and prototypes of products and projects, but does not include information that the Recipient can demonstrate (by written documentation in the possession of the Recipient) is:
(j) already known by the Recipient (other than by disclosure from the Discloser); or
(k) publicly known as at the date of disclosure or which becomes publicly known at a later date through no act or omission of the Recipient.
Claim means any claim, demand, action or proceedings made or commenced in any jurisdiction for compensation for Loss of any kind or for any other remedy and founded on any cause of action whatsoever, including but not limited to breach of contract, negligence or other tort or breach of statutory duty or warranty and includes any claim for legal costs and disbursements.
Customer means the party specified in Schedule 1.
Data means all input information (such as location, features and description of a specific venue or Map), documentation and material provided by the Customer to naveze for the purpose of creation of the Map App, any variations and Editions.
Development Fee means the fee payable by the Customer to naveze for the creation of the Map App as specified in Schedule 2.
Development Period means a period of time required by naveze to complete the development of the Map App as specified in Schedule 2.
Discloser means the party that discloses Confidential Information, or whose Confidential Information is disclosed to the Recipient.
Editions means new routes and locations which the Customer may request naveze to create and implement within the Map App.
Edition Fees means fees payable Editions as specified in Schedule 3.
Encumbrance means a mortgage, charge, lien or other security interest of any kind.
Map App means a navigational mobile application built on the basis of the Software in accordance with the Map Specification, Customer’s Data and any agreed variations and include Editions, such application being designed to navigate Map Users, improve visitor experience and monetise way-finding for a venue or an event.
Map Specification means the specifications and requirements for the Map App provided by the Customer as set out in Annexure “A”.
Map User means a person other than the parties who seeks access to and uses the Map App.
Initial Term means the period of time specified in Schedule 2.
Insolvency Map means if a party to this Agreement:-
(a) enters into bankruptcy, provisional liquidation or liquidation or a petition is filed or a resolution is passed for the winding up of the company;
(b) enters into receivership;
(c) enters into voluntary administration;
(d) has a “controller” (as defined in the Corporations Act 2001 (Cth)) appointed to it;
(e) has the whole or any part of its assets and/or undertaking dispossessed by the holder of any Encumbrance;
(f) is unable to pay its debts as they fall due;
(g) enters into any arrangement or compromise with its creditors; or
(h) enters into any other form of administration in insolvency.
Intellectual Property means all forms of intellectual property throughout the world including patents, petty patents, innovation patents, patentable inventions, know-how, trade marks (whether registered or unregistered), copyright, registered and registrable designs, circuit layout rights, applications for registration of any of the foregoing and rights to apply for registration of any of the foregoing.
Loss means loss of any kind including but not limited to damage, expense or cost of any kind, including personal injury, death, damage to reputation, economic loss, loss of or damage to property, loss of data, financial loss, loss of money, consequential loss, loss of revenue, loss of profit, loss of cost and other savings, loss of opportunity, costs of enforcement and legal costs, fees, expenses and disbursements and any other form of loss.
naveze means Business of Pursuits Pty Ltd t/as naveze (ABN 97 613 678 578)
Order means an order by the Customer to add and implement Editions, provide Add-Ons or Services by naveze.
Recipient means a party that receives Confidential Information.
Renewed Term means the period of time following the expiration of the Initial Term as specified in Schedule 2.
Schedule means a schedule to this Agreement.
Scope of Works means the description of Services (including but not limited to consulting services) which the Customer may require naveze to provide and applicable fee payable for such Services.
Services means services requested by the Customer from naveze from time to time, including but not limited to consulting services, training and other services.
Software means the naveze software which is used as the platform for the creation, use of and access to the Map App and the Subscription.
Subscription means access to and use of the Map App by the Customer.
Subscription Fee means a fee payable in respect of the Subscription as set out in Schedule 2.
Subscription Term means the period of time starting as provided by clause 2.9 and ending on the expiration of the Term or termination of this Agreement.
Term means the Initial Term, Renewed Term and any further term and extensions of this Agreement.
Terms & Conditions means the terms and conditions contained in this document.
Training means a physical, video or online training conducted by naveze for the Customer upon completion of the Map App, or as agreed otherwise, in relation to the use and features of the Map App.
User means a representative of the Customer which is added by the Admin User to use and access the Account.
Variation Fee means an estimate of the fee payable to naveze for execution and implementation of a variation to the Map App and Map Specification requested by the Customer.
Variation Quote means a description of a variation to the Map App and Map Specification requested by the Customer and applicable Variation Fee.
Warranty Period means a period of 6 months during which a warranty in relation to the Map App as described in clause 3.1 applies.