Tempsafe by Virtech Customer Agreement Document
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means the date on which the Customer executes the Order Form.
means the end user of the Software and the Hardware.
means the amount specified in the Price Schedule for the Software and the Hardware in Australian Dollars.
(a) the same as in the GST Law;
(b) any other goods and services tax, or any tax applying to this agreement in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
means the Hardware specified in the Price Schedule.
means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed;
(c) a right of integrity of authorship; or
(d) a right of a similar nature;
which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this Agreement.
means the Price Schedule located in the Customer Quote.
1 DEFINITIONS AND INTERPRETATION
Intellectual Property Rights
Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this agreement.
In consideration of this Agreement, the parties shall engage in the following process:
(a) the Customer shall specify an order with Virtech in writing;
(b) Virtech shall issue a tax invoice for the Fee to the Customer;
(c) upon payment of the tax invoice by the Customer, Virtech shall implement an order for the Hardware;
(d) upon receipt of the order, Virtech shall deliver the Hardware to the Customer.
4 Licence Fee
In consideration of the Licence, the Customer must pay the Licence Fee to Virtech in accordance with the Price Schedule.
The Licence Fee is exclusive of all taxes, duties and surcharges payable in respect of the Software and in respect of this Agreement.
5 Ownership and Intellectual Property Rights
Virtech retains ownership of the Software during the term of the Licence.
All Intellectual Property Rights in the Software are retained by Virtech.
All Intellectual Property Rights in the Hardware are retained by the manufacturer.
Nothing in this agreement affects the ownership of Moral Rights in the Software or the Hardware.
The Customer must not copy the Software, in whole or in part.
The Customer must notify Virtech immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software.
7 Reverse Engineering
The Customer must not reverse assemble or reverse compile the Software or any part of the Software.
The Customer must not modify the whole or any part of the Software or the Hardware or combine or incorporate the whole or any part of the Software in any other program or system.
The Customer shall fully indemnify and hold harmless Virtech against any liability incurred in respect of the unauthorised modification of the Software or the Hardware.
The Customer will be responsible for protecting the Software whilst it is in the Customer’s possession, power or control, from unauthorised access, use or damage.
Risk of loss or damage to the Software or the Hardware will pass to the Customer upon delivery to the Customer.
The Customer shall fully indemnify and hold harmless Virtech against any liability in damages (including special, indirect or consequential damages, which damages shall be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of the Customer.
The liability of Virtech in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of Virtech in connection with its obligations under this Agreement will not exceed the Fee.
In respect of any claim between the parties under or in connection with this agreement, the parties agree that to the maximum extent permitted by law, the operation of the Civil Liability Act 2003 (Qld) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.
Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
In addition to paying the Fee and any other amount payable or in connection with this Agreement (which is exclusive of GST), the Customer will:
(a) pay to Virtech an amount equal to any GST payable from any supply by Virtech in respect of which the Fee or any other amount is payable under this Agreement; and
(b) make such payment either on the date when the Fee is due or within 7 days after the Customer is issued with a tax invoice, whichever is the later.
Virtech must, within 28 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this Agreement.
Virtech will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but Virtech need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless Virtech has received a refund or credit for that amount.
13 Entire Agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software and the Hardware. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient set out in the Schedule or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.
The Customer shall not, whether in whole or part, assign the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Virtech.
16 Governing Law
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in Queensland and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
No variation of this Agreement will be effective unless in writing and signed by both parties.
Should any part of this Agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement.
20 Dispute Resolution
Any dispute or difference arising in connection with this Agreement shall be submitted to arbitration in accordance with, and subject to, the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators and Mediators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.