In relation to Products that are resold to the Client on a once-off basis, this Agreement commences on the execution of the Quotation and continues until Peak Insight receives full payment of the Fees unless terminated in accordance with its terms.
1.2 Subscription Term
The following provisions apply to Products that are resold to the Client on an ongoing basis:
(a) This Agreement commences on the Estimated Subscription Start Date and continues until the Estimated Subscription End Date unless terminated or extended in accordance with its terms.
(b) To avoid doubt, if the execution of the Quotation is delayed:
(i) the Estimated Subscription Start Date will be automatically extended to the first Business Day following the date of the last party’s signature on the Quotation; and
(ii) the Estimated Subscription End Date will be automatically extended by the same number of days as the period of delay.
(c) On the Estimated Subscription End Date, the Subscription Term will automatically renew for successive terms of 12 months unless a Party notifies the other Party in writing of its intention not to renew at least 30 days before the then-current Estimated Subscription End Date.
- Resale of Products
During the Term, Peak Insight agrees to provide the Product as set out in a Quotation.
2.2 Provision of the Product
(a) Peak Insight will resell the Product to the Client:
(i) in accordance with the Quotation and this Agreement; and
(ii) in accordance with all Laws applicable to Peak Insight.
(b) The following provisions apply to Product that is hardware:
(i) Risk in the Product passes to the Client immediately on delivery of Product to the Client, and title to the Product passes to the Client when the Fees have been paid in full to Peak Insight.
(ii) Until title to the Product passes to the Client, the Client must not do anything to affect ownership of the Product.
(c) The Client will do all things reasonably necessary to enable Peak Insight to perform its obligations under this Agreement including providing Peak Insight with Information, performing any works, procuring any software or hardware, providing any digital certificates, providing any information or Client Environment or connecting any services as described in the Quotation or as reasonably required by Peak Insight from time to time.
2.3 Third Party Terms
(a) The Client acknowledges and agrees that:
(i) the Product is owned by or is proprietary to a Third Party;
(ii) its purchase, access or use of the Product will be subject to the Third Party licensor’s terms; and
(iii) all terms with respect to the Client’s purchase, access or use of the Product will be between the Client and the Third Party,
(Third Party Terms).
(b) The Client will enter into Third Party Terms directly with the Third Parties for the purchase, access or use of the Product.
(c) The Client acknowledges and agrees that by signing this Quotation, it is deemed to have accepted and agreed to the Third Party Terms in respect of the Product.
2.4 Warranty Period
If a material defect arises in respect of the Product, the Client will directly contact the Third Party to facilitate a warranty claim under the applicable Third Party Terms. Peak Insight may, in its sole discretion, use reasonable efforts to assist the Client to facilitate a warranty claim with the relevant Third Party.
2.5 Ad-hoc services
On a case by case basis and subject to additional Fees, Peak Insight may agree, in its sole discretion, to provide the Client with any installation or other professional services using best efforts only and on reasonable and lawful directions of the Client.
2.6 Change requests
(a) A Change to a Quotation will be effected by:
(i) either Party submitting a Change Request to the other Party; and
(ii) if the Parties agree, Peak Insight will provide an amended Quotation that will include the specifications for the Change, an estimate of the timing for performance of the Change and any adjustment to the Fees for the Change.
(b) The amended Quotation provided by Peak Insight in accordance with clause 2.6(a)(ii) will be binding on the Parties, when it is agreed in writing by the Parties.
- Client Obligations
3.1 General obligations
The Client undertakes to:
(a) do all things reasonably necessary to enable Peak Insight to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as reasonably required by Peak Insight from time to time;
(b) obtain and maintain all necessary consents, permits, licences, registrations and approvals for the Client Environment and any component thereof, including procuring permissions for Peak Insight and its Personnel to provide the Product on or in relation to the Client Environment; and
(c) ensure that the Client Environment complies with the Third Party licensor’s minimum specifications for the Product.
3.2 Change to Client Environment
(a) During the Subscription Term, the Client will provide Peak Insight with uninterrupted remote access to the Client Environment for the purpose of delivering the Product.
(b) If it is determined by Peak Insight, acting reasonably, that the Client Environment has materially changed, Peak Insight reserves the right to alter or otherwise re-negotiate any terms of this Agreement or to vary the Quotation to suit the new Client Environment.
3.3 Client acknowledgements
Peak Insight is not responsible for any failure to perform or delay in performing any of its obligations under this Agreement where, such failure or delay is caused or contributed to by the Client.
- Fees and Payment
(a) The Client will pay Peak Insight the Fees in accordance with the payment terms set out in the relevant Quotation. Where the Product is charged based on usage, the Client will pay Peak Insight any additional Fees set out in the Quotation for any use of the Product in excess of the applicable limitations.
(b) Peak Insight will provide the Client with a valid tax invoice for all amounts due in respect of the Product in accordance with the invoicing terms set out in the relevant Quotation.
(c) Unless otherwise specified in a Quotation, the Client will pay the valid tax invoices within 30 days of receipt.
4.2 Disputed amounts
If the Client disputes any amount claimed in an invoice, then within the time for payment of the invoice, the Client must pay the undisputed portion and must seek to resolve the disputed portion with Peak Insight in good faith. In the event the Parties cannot resolve the dispute, the matter must be resolved in accordance with clause 10.
4.3 Overdue amounts
With the exception of disputed amounts, if any amount payable to Peak Insight under this Agreement has not been paid by the Client by the due date for payment, and Peak Insight has provided written notice of such failure and the Client has not paid, Peak Insight may:
(a) charge an administration fee of $90.00 (ex GST) per overdue invoice per month to cover Peak Insight’s costs of collecting such amounts owing;
(b) charge the Client interest on the amount outstanding at the rate of 2% per annum above the overdraft index rate charged by the Commonwealth Bank from the due date until the date of actual payment and interest; or
(c) suspend the provision of the Product under the Quotation to which the unpaid amount relates.
If the Client disputes an amount under an invoice and any portion of that disputed amount is later found to be payable, then Peak Insight may charge the Client interest on that portion, at the rate and in the manner set out in clause 4.3(a).
4.4 Fee Review
(a) Any Fees payable to Peak Insight by the Client may be varied upward on each anniversary of the Estimated Subscription Start Date (Review Date). The variation shall be calculated in accordance with the greatest of:
(i) the increase in Peak Insight’s cost in reselling the Product; or
(ii) the percentage increase in the Consumer Price Index (Weighted Average of Eight Capital Cities) published by the Australian Bureau of Statistics as compared with the same index for the same quarter of the previous year; or
(b) The variation will be effective from the Review Date to which it applies, and Peak Insight will provide confirmation in writing.
(c) During the Subscription Term and in addition to its rights under clause 4.4(a), Peak Insight may increase the Fees on written notice to the Client following any increase in the costs of providing the Services as a result of any change or increase in costs by any Third Party licensors. Any increase in Fees under this clause may include Peak Insight’s margin.
(a) In this clause a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
(b) If a Party makes a supply in respect of which GST is payable, the consideration for the Supply is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the Supply is made.
(c) A Party need not make a payment for a taxable supply made under or in connection with this document until it receives a tax invoice for the supply to which the payment relates.
- Intellectual Property Rights
5.1 Ownership of Product
All right, title and interest in the Intellectual Property Rights in the Product will be retained by the relevant Third Party.
5.2 Licence to use Background Materials
(a) Each Party retains title and ownership of its Background Materials. To the extent necessary and for the sole and limited purpose of providing, and obtaining the benefit of, the Product, each Party will grant the other Party a non-exclusive, revocable, royalty-free licence to use and access to its Background Materials during the Subscription Term.
(b) Any adaptation, translation or derivative of Background Materials will vest in, or are hereby assigned, to the owner of the Background Materials immediately upon creation.
(c) Nothing in this Agreement grants the Client a licence to Peak Insight’s Background Materials for the purposes of commercialisation, exploitation or otherwise any use separate from the Product.
5.3 Client obligations
The Client must:
(a) in using the Product or Peak Insight’s Background Materials, ensure that the Intellectual Property Rights and other proprietary rights in the Product are not infringed in any way;
(b) comply with the directions of Peak Insight in relation to the use of the Product or Peak Insight’s Background Materials; and
(c) immediately cease to use Peak Insight’s Background Materials in every manner whatsoever upon expiration or termination of this Agreement or upon an earlier written request by Peak Insight which is not inconsistent with this Agreement.
6.1 Confidentiality obligations
Each Party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other Party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 6.2, the Receiving Party must:
(a) keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
(c) not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.
The obligations of confidentiality under clause 6 do not apply to any Information that:
(a) is generally available to the public (other than by reason of a breach of this Agreement); or
(b) is required to be disclosed by any applicable Law (but only to the extent required to permit a Party to comply with that obligation).
- Privacy and Data Security
(a) Both Parties agree to comply with the Privacy Law in relation to the provision and use of the Product.
(b) The Client acknowledges and agrees that it is responsible for the collection, use, storage and otherwise dealing with Personal Information related to the Client’s business and all matters relating to the Product. The Client will comply and ensure that all of its Personnel comply, with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
(c) The Client undertakes for itself, and on behalf of its Personnel, to:
(i) notify its customers, clients or other individuals to whom Personal Information it collects relates of any matter prescribed by any Privacy Law in relation to the collection, use and storage of their Personal Information, including the transfer of and use such Personal Information by Peak Insight;
(ii) ensure that any Personal Information transferred to Peak Insight is complete, accurate and up to date; and
(iii) notify Peak Insight immediately upon becoming aware of any breach of any Privacy Law that may be related to the use of the Personal Information under this Agreement.
(d) The Client may only disclose Personal Information in its control to Peak Insight if:
(ii) the Client has informed and has obtained the consent of the individual to whom the Personal Information relates that in order to provide goods or services to them it might be necessary for the Client to disclose their Personal Information to a Third Party, including to a Third Party located outside of Australia.
(e) The Client acknowledges and agrees that Peak Insight may collect, use, or disclose Personal Information:
(ii) for the purpose of providing the Product; and
(iii) to manage and maintain its business relationship with the Client.
7.2 Data Security
(a) The Client will:
(i) take all reasonable precautions to prevent any unauthorised access to or alteration of the Client Data and the Client Environment (Cyber Breach);
(ii) perform and store all backups relating to the Client Data; and
(iii) be responsible for the selection and implementation of controls on its access and use, backup and recovery and the security of Client Data, including any procedures necessary to safeguard the integrity and security of the Client Environment and Client Data used in the Product from Cyber Breaches.
(b) The Client will as soon as reasonably practicable notify Peak Insight where it becomes aware of a Cyber Breach and will use commercially reasonable endeavours to identify the source or cause of that Cyber Breach.
(c) The Client acknowledges and agrees that Peak Insight will not be responsible for any Cyber Breach resulting from or otherwise aided by the Client’s conduct or any failure to maintain its security of the Client Data or Client Environment.
(a) Peak Insight warrants to the Client that the performance of Peak Insight’s obligations under this Agreement (excluding the Product) will not infringe the Intellectual Property Rights of any Third Party.
(b) The Product will be subject to the warranty as set out in the relevant Third Party Terms.
(c) The Client warrants that the use of, or the performance of Peak Insight’s obligations under this Agreement requiring the use of, the Client’s Background Materials will not infringe the rights, including the Intellectual Property Rights, of any Third Party.
(d) Other than as set out in this clause, any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.
(e) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Parties by the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement.
- Liability, Indemnity and Insurance
9.1 Limitation of liability
(a) To the extent permissible by Law, the maximum aggregate liability of either Party for all proven losses, damages and claims arising out of this Agreement, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the monthly average of the amounts paid by the Client to Peak Insight under this Agreement, multiplied by twelve (12).
(b) To the extent permissible by Law, except for any indemnity in clause 9.2, neither Party is liable for Consequential Loss suffered by the other Party under this Agreement.
(c) A Party’s liability under this Agreement (including under an indemnity) is reduced proportionately to the extent that such liability is caused or contributed to by the breach of this Agreement or the wrongful, unlawful or negligent act or omission of other Party or its Personnel.
(d) Each Party must use all reasonable endeavours to mitigate any losses under or in connection with this Agreement.
(a) Peak Insight will indemnify and keep indemnified the Client against any damages, breaches, costs, claims, actions and demands, and all fines, compensation, remedial action or payments imposed on the Client arising out of or in connection with a claim by any person alleging that Peak Insight’s performance under this Agreement (excluding the Product) infringes the claimant’s Intellectual Property Rights (IP Claim), provided that if an IP Claim is made against the Client:
(i) the Client will promptly notify Peak Insight in writing; the Client will promptly notify Peak Insight of the IP Claim;
(ii) the Client will provide all reasonable assistance as requested by Peak Insight to resolve the IP Claim;
(iii) the Client will give Peak Insight the right to defend and settle the IP Claim; and
(iv) the Client will not prejudice the defence of the IP Claim (including by making any admissions).
(b) Each Party indemnifies and must keep indemnified the other Party against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) arising from or in connection with:
(i) a breach of clauses 6 (Confidentiality) or 7 (Privacy);
(ii) damage or loss to any real and tangible property of the first Party or any other person caused by the wrongful, unlawful or negligent act or omission of the other Party or its Personnel under this Agreement; or
(iii) death of or injury to any person caused by the wrongful, unlawful or negligent act or omission of the other Party or its Personnel under this Agreement.
9.3 Exclusion from liability
Peak Insight will have no liability to the Client to the extent caused or contributed to by the following:
(a) the quality, performance or fitness for purpose of the Product, noting that the Client has rights under the relevant Third Party Terms;
(b) operation of the Product in a manner not authorised by Peak Insight or the Third Party Terms in writing or with any hardware, software or services not authorised by Peak Insight in writing;
(c) enhancements, adaptations, translations or modifications of the Product or any part of the Client’s use or systems by a person other than Peak Insight;
(d) faults, malfunction or defect in the Client Environment or any material not provided by Peak Insight; or
(e) telecommunications or power failure or fault or defective network or internet connection.
(a) During the Subscription Term, Peak Insight must effect and maintain appropriate insurance for complying with its obligations under this Agreement.
(b) Peak Insight agrees to provide evidence of the insurance policies required in this clause upon reasonable request by the Client.
- Dispute resolution
(a) A Party claiming that a dispute has arisen must give written notice to the other Party specifying the nature of the dispute and the Parties must submit themselves to the dispute resolution procedure specified in this clause 10.
(b) The Parties agree that if a dispute arises out of or relates to this Agreement, a Party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 10 except to seek urgent equitable or interlocutory relief. The procedures in this clause 10 must be completed within 40 Business Days from the giving of notice referred to in this clause 10(b). After expiry of this time a Party may commence legal proceedings relating to the dispute.
(c) When a dispute arises between the Parties in relation to this Agreement, then:
(i) all amounts payable by the Client to Peak Insight which are not in dispute must be paid in accordance with the Quotation;
(ii) if the Parties cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each Party (jointly referred to in the remainder of this clause 10(c) as Chief Executive Officers) for resolution; and
(iii) if the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral, then the Parties must submit the dispute to a mediator for consideration in accordance with the Mediation and Conciliation rules of the Institute of Arbitrators and Mediators Australia, which Rules are taken to be incorporated into this Agreement.
(d) Each Party must pay its own internal and legal costs in relation to complying with this clause 10. The mediator’s costs are to be shared equally between the Parties.
11.1 Right to terminate
(a) If an Event of Default occurs in relation to a Party (Relevant Party), the other Party may give a notice (Default Notice) to the Relevant Party specifying the Event of Default and requiring the Relevant Party to remedy the default within 20 Business Days after the Default Notice is given to the Relevant Party.
(b) If a Party (Defaulting Party) receives a Default Notice and does not comply with the notice within the relevant period referred to in clause 11.1(a) then the other Party, without limiting its other rights and remedies, may terminate this Agreement by giving to the Defaulting Party notice with immediate effect.
11.2 Consequences of termination
(a) On the expiry or termination of this Agreement for any reason:
(i) the Agreement is at an end as to its future operation except for the enforcement of any right or claim in relation to the Agreement that arises on, or has arisen before, the expiry or termination;
(ii) the Client must pay Peak Insight all outstanding Fees which will become immediately due and payable and any invoice provided for the Product but not invoiced before termination;
(iii) the Client must cease accessing or using the Product;
(iv) the Client must immediately cease using and return to Peak Insight any part of the Product, at the Client’s risk and cost; and
(v) the Client must immediately cease using and return to Peak Insight any of Peak Insight’s Background Material and Confidential Information, at the Client’s risk and cost, or if such Background Material or Confidential Information is incapable of being returned, permanently destroy it.
(b) On the termination of a Quotation by Peak Insight in accordance with clause 11.1(a) due to the Client’s breach of this Agreement, a purported cancellation by the Client, or any repudiation of the Agreement by the Client, the Client must pay to Peak Insight its Unavoidable Costs.
11.3 Survival of obligations
This clause 11.3 and all other provisions that, by their nature, are intended to survive termination of this Agreement, will survive expiration or termination of this Agreement, including clause 10.
This clause 12 applies where the Product is hardware. The Client acknowledges that Peak Insight’s interest under this Agreement in respect of Product provided to the Client prior to receiving full payment in accordance with the Quotation is a Security Interest for the purposes of the PPSA and:
(a) that Security Interest relates to the Product and all proceeds of any kind; and
(b) this Agreement is a security agreement for the purposes of the PPSA.
(a) The Client consents to Peak Insight effecting a registration on the PPSA (in any manner Peak Insight considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement.
(b) If required by Peak Insight, the Client must pay all costs associated with the registration, maintenance and withdrawal of any Security Interest on the PPSR which secures the Client’s obligations under any agreement with Peak Insight.
(c) The Client waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
(d) The Client must do all things (including signing any document) and provide all information necessary to enable Peak Insight to perfect and maintain the perfection of any and each Security Interest granted to Peak Insight by the Client.
(e) For the purposes of this clause 12, the Client irrevocably appoints Peak Insight to be its attorney with power to do all things necessary or expedient including entering into any documents deemed necessary by it to give effect to the Client’s obligations under this Agreement.
12.3 PPSA provisions
(a) If Chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or in connection with this Agreement, the Client agrees the following provisions of the PPSA will not apply to the enforcement of that Security Interest:
(i) section 95 (Secured party must give notice of removal of accession), to the extent that it requires Peak Insight to give the Client a notice;
(ii) section 96 (When a person with an interest in the whole may retain accession);
(iii) subsection 121(4) (Enforcement of security interests in liquid assets – notice to higher priority parties and grantor);
(iv) section 125 (Obligation to dispose of or retain collateral);
(v) section 130 (Notice of disposal of collateral), to the extent that it requires Peak Insight to give the Client a notice;
(vi) paragraph 132(3)(d) (Secured party to give statement of account – statement of account following disposal);
(vii) subsection 132(4) (Secured party to give statement of account – statement of account if no disposal);
(viii) section 142 (Entitled persons may redeem collateral); and
(ix) section 143 (Entitled persons may reinstate security agreement).
(b) Where a person is a controller in relation to the Product, the Parties agree that Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Product by that controller.
(c) Notices or documents required or permitted to be given to the Client for the purposes of the PPSA must be given in accordance with the PPSA.
13.1 Force majeure
Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control (Force Majeure). If the Force Majeure continues for a period of more than 20 Business Days, either Party may terminate this Agreement by written notice to the other Party.
13.2 Nature of obligations
(a) Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.
(b) Each obligation imposed on a Party by this Agreement in favour of another is a separate obligation.
13.3 Entire understanding
This Agreement contains the entire understanding between the Parties concerning the subject matter of this Agreement and supersedes all prior communications, agreements, proposals, work orders or correspondence between the Parties.
13.4 No adverse construction
This Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
13.5 Further assurances
A Party, at its own expense and within a reasonable time of being requested by another Party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.
13.6 No waiver
(a) A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by this Agreement does not operate as a waiver of that power or right.
(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.
(c) A waiver of a breach does not operate as a waiver of any other breach.
Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this Agreement in any other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
13.8 Successors and assigns
This Agreement binds and benefits the Parties and their respective successors and permitted assigns under clause 13.9.
13.9 No assignment
Neither Party may assign or otherwise transfer the benefit of this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.
13.10 Consents and approvals
Where anything depends on the consent or approval of a Party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that Party.
13.11 No variation
This Agreement cannot be amended or varied except in writing signed by the Parties in accordance with clause 2.4.
Each Party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
13.13 Governing Law and jurisdiction
(a) This Agreement is governed by and must be construed in accordance with the Laws in force in Victoria, Australia.
(b) The Parties submit to the non-exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement and its performance or subject matter.
Any notice or other communication to or by a Party under this Agreement:
(a) may be given by personal service, post, facsimile or email;
(b) must be in writing, legible and in English addressed (depending on the manner in which it is given) as set out in the relevant Quotation or to any other address last notified by the Party to the sender by notice given in accordance with this clause;
(c) in the case of a corporation, must be signed by an officer or authorised representative of the sender or in accordance with section 127 of the Corporations Act; and
(d) is deemed to be given by the sender and received by the addressee:
(i) if delivered in person, when delivered to the addressee;
(ii) if posted, 6 Business Days (or 10, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; or
(iii) if sent electronically by email and confirmation is received from the relevant internet service provider that the transmission was successfully received in full and without error, on the day of transmission. Any notice by email must clearly state that such email constitutes notice pursuant to this Agreement,
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day.
If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document.
The Client agrees that Peak Insight may:
(a) reference the Client by name, use the Client’s logo, and provide a description of the nature of the Product provided by Peak Insight in all customer lists and in sales and marketing communications, without prior written consent from the Client; and
(b) subject to obtaining prior written consent from the Client, reference the Client in case studies or white papers, or to use quotations from the Client’s employees.
Agreement means these terms and conditions, the Quotation, and any schedules, recitals, attachments or annexures;
Background Materials means:
(a) any material, communications or technology which is pre-existing or created independently of the Agreement which a Party makes available for the performance of its obligations in respect of the Product; or
(b) any Information, communications, technology, software or other materials which are otherwise required for effective use of the Product; and
(c) any improvements, enhancements, modifications, adaptations, extensions, developments, application of and all other technical advances made to the materials set out in (a) and (b) above, whether or not protected by Law;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria, Australia;
Change means any variation to all or part of a Quotation;
Change Request means a written request by a Party for a Change, substantially in the form approved by Peak Insight from time to time, which will include any additional information reasonably necessary to enable the other Party to properly assess the request;
Client Data means the data owned or supplied by the Client which is uploaded or generated by the Client in the course of using the Product;
Client Environment means the Client’s information technology, telecommunications, internet, other relevant infrastructure, hardware, software, cloud-based subscription services, and systems that interface with the Product;
Confidential Information means:
(a) the terms of this Agreement, the Quotation and their respective subject matter, including Information submitted or disclosed by either Party during negotiations, discussions and meetings relating to this Agreement or the Quotation;
(b) Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
(c) all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party;
Consequential Loss means an indirect loss (not being a loss which arises naturally as a result of a breach of this Agreement or other event giving rise to the relevant claim), as well as loss of reputation, loss of goodwill, loss or destruction of data, lost profits, lost revenue, loss of use (including loss of use by Third Parties), failure to realise anticipated savings and loss of opportunity;
Corporations Act means the Corporations Act 2001 (Cth);
Cyber Breach means any incident in respect of the Client Environment or the Client Data (including in respect of Personal Information held or stored by Peak Insight on behalf of the Client) that results in:
(a) a notifiable data breach for the purposes of the Privacy Act;
(b) the Client Data having been misused, interfered with, corrupted or subject to unauthorised access, modification or disclosure;
(c) unauthorised access to the Client Data, storage device or computer network in which such information is stored;
(d) that Client Data or the storage device or computer system on which such information is stored being lost or misplaced; or
(e) any part of the Client Data becoming corrupted, not accessible, incorrectly modified or deleted as a result of loss, unauthorised disclosure or unauthorised access;
Disclosing Party means the Party to whom Confidential Information belongs or relates;
Estimated Subscription Start Date means the commencement date of each Quotation as identified in the relevant Quotation;
Estimated Subscription End Date means the end date of each Quotation as identified in the relevant Quotation;
Event of Default means in relation to a Party, the occurrence of any one or more of the following events or circumstances:
(a) the Party fails to comply with any of its obligations under a Quotation or these terms and conditions;
(b) an Insolvency Event occurs in relation to the Party;
(c) a notice of deregistration of the Party is given under sections 601AA(5) or 601AB(5) of the Corporations Act; or
(d) the Party fails to pay by the due date any undisputed amount due and payable by it under a Quotation;
Fees mean the fees specified in the Quotation and payable by the Client to Peak Insight for provision of the Product;
Force Majeure means a circumstance beyond the reasonable control of a Party which could not have been prevented or avoided by that Party by reasonable diligence or reasonable precautions, and results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include, but are not limited to, the following circumstances provided they satisfy the preceding requirements:
(a) acts of God, epidemics and pandemics (whether declared or undeclared), lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, or any restrictions on the movement of individuals or goods imposed by any Government Agency; and
(c) strikes or other industrial action affecting a Party;
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction;
Information means any information, whether oral, graphic, electronic, written or in any other form, including:
(a) forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
(b) copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
(c) samples or specimens disclosed by either Party;
Insolvency Event means, in relation to a Party, any one or more of the following events or circumstances:
(a) being in liquidation or provisional liquidation or under administration;
(b) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(c) being unable to pay its debts or being otherwise insolvent;
(d) becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at civil, common law or in equity and wherever existing, including:
(a) patents, designs, copyright, rights in circuit layouts, database rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of the rights in paragraph (a);
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and
(d) all renewals and extensions of these rights;
(a) principles of law or equity established by decisions of courts;
(b) statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
(c) requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law;
Party means Peak Insight or the Client and Parties means both of them;
Personal Information has the same meaning as is given to that term in the Privacy Act 1988 (Cth);
Personnel in relation to a Party, are the directors, officers, employees, agents or subcontractors of that Party;
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it;
PPSR means the Personal Properties Securities Register established pursuant to the PPSA;
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Law means all Commonwealth, State and Territory legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to the Personal Information including the Privacy Act 1988 (Cth) and includes the Australian Privacy Principles as contained within that Act;
Product means the product owned or licensed by a Third Party that Peak Insight agrees to resell to the Client under this Agreement as set out in a Quotation;
Quotation means a written statement (including any attachments) for the resale of the Product by Peak Insight to the Client;
Receiving Party means the Party to whom Confidential Information is disclosed or who otherwise acquires or learns Information belonging or relating to a Disclosing Party;
Related Entity has the meaning given to that term in the Corporations Act;
Security Interest has the same meaning given in the PPSA;
Subscription Term means the term of each Quotation as identified in the relevant Quotation;
Third Party means any party other than Peak Insight or the Client;
Third Party Terms has the meaning given to that term in clause 2.3; and
Unavoidable Costs means reasonable costs incurred by Peak Insight, in connection with the performance of its obligations under this Agreement or any agreement with any Third Party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to Peak Insight’s other operations or business activities, including, for example labour and Third Party costs incurred to deliver a change request or Quotation, then terminated by the Client.
In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) the headings are used for convenience only and do not affect the interpretation of the Agreement;
(c) other grammatical forms of defined words or expressions have corresponding meanings;
(d) a reference to a document includes the document as modified from time to time and any document replacing it;
(e) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(f) the word “person” includes a natural person and any body or entity whether incorporated or not;
(g) the word “month” means calendar month and the word “year” means 12 months;
(h) the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(i) a reference to a thing includes a part of that thing;
(j) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
(k) “Including” and similar expressions are not words of limitation;
(l) money amounts are stated in Australian currency unless otherwise specified;
(m) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body; and
(n) no provision of this Agreement will be interpreted against a Party merely because that Party prepared that provision or contributed to its drafting, or seeks to rely upon it.
13.19 Order of priority
In the event of any conflict between any of the following documents, the priority of the documents will be as follows (listed in descending order of precedence):
(a) the terms of the Quotation;
(b) the terms and conditions in the body of this Agreement;
(c) Schedules to this Agreement; and
(d) any other documents referred to in, or incorporated by reference in, this Agreement or any of its schedules, exhibits or annexures.