Standard Terms of Service

1Services

• 1.1Tecoda will provide the Services to the Customer throughout the Term on the terms set out in this agreement.
• 1.2The Customer may request that Tecoda provide Additional Services from time to time.
• 1.3If Tecoda agrees to provide Additional Services, Tecoda will provide the Customer with notice of the scope of the Additional Services and of any Additional Fees which are payable.
• 1.4The terms of this agreement will apply to any Additional Services, in addition to and subject to any other terms which Tecoda advises the Customer will apply to the Additional Services.

2Availability of Services

• 2.1The Customer acknowledges that:
  • aTecoda will determine which Personnel will provide the Services;
  • bAny information provided by the Customer which is inaccurate, incomplete or which is not provided to Tecoda within a reasonable time of request, could have a material effect on the Services or may result in Additional Fees applying;
  • cTecoda is not responsible for verifying the underlying accuracy, truthfulness or completeness of any information provided by the Customer;
  • dUser Content and other data generated in connection with the Services will be collected and handled by Tecoda in accordance with the Privacy Policy.
• 2.2The Customer authorises Tecoda and its Personnel to act as the Customer’s agent where strictly necessary to provide the Services.

3Availability of Software

• 3.1The Customer acknowledges that:
  • aTecoda may modify and update the Software from time to time for any reason, including but not limited to improving the functionality and appearance of the Software or to create additional features or extensions;
  • bTecoda will take reasonable steps to advise the Customer in advance of any update that may substantially alter the functionality, reporting capability or general experience of using the Software;
  • cTecoda may (but is not obliged to) monitor the use of the Software by the Customer or End Users to assess compliance with this agreement;
  • dThe compatibility of the Software and the specifications required to access the Software with certain devices may vary over time.

4Customer Obligations

• 4.1The Customer must:
  • apromptly upon request, provide Tecoda with any information and access to the Customer’s premises and equipment Tecoda requires to provide the Services and Hardware;
  • bnot, and ensure that the End Users do not, use the Services, the Software or any part thereof:
    • ito infringe or authorise the infringement of any Intellectual Property Rights or other rights of a third party;
    • iito store or distribute any illegal, or illegally obtained content;
    • iiiin any manner, or to do anything which is, contrary to law;
    • ivto create or distribute any spam or unsolicited commercial message or engage in any other unlawful marketing scheme;
    • vin a manner which could adversely affect the provision of the Services or Tecoda’s ability to provide similar services to others in the course of its business;
  • cnot:
    • imodify any part of the Software to enable it to operate without a valid licence key or otherwise tamper with the licensing component of the Software or use a counterfeit access key;
    • iiattempt to reverse engineer, decompile, disassemble or otherwise attempt to derive or access the source code, techniques, processes, algorithms, know-how or any other information (as applicable) from the Software;
    • iiimodify, create derivatives of or improvements to, decompile or otherwise attempt to access or extract the source code of the Software without Tecoda’s permission;
    • ivcopy, archive, download, reproduce, distribute, sell, syndicate, broadcast, display, perform or otherwise use the Software other than as permitted by this agreement;
    • vremove any proprietary notices or labels from the Software or Hardware;
  • dnot, and ensure that its End Users do not, create or circulate User Content that Tecoda reasonably determines is illegal, misleading, threatening, defamatory, discriminatory, hateful, obscene, profane, graphically violent or pornographic or which incites violent or dangerous activities;
  • eaccept responsibility for the User Content;
  • fnot allow more than (the maximum) Concurrent End Users to access the Software at any one time;
  • gkeep secret any username and password used to access the Services;
  • hensure that all End Users comply with this agreement to the extent it applies to them as a user of the Services and Hardware;
  • iensure that the End Users are only the staff members of the Customer;
  • jtake reasonable steps to ensure that all information provided to Tecoda is true, accurate, complete, up to date and is not misleading;
  • kensure it has adequate backups of all data to which Tecoda will have access during the Term and ensure that it is able to restore such backups in the event of any data becoming corrupted;
  • luse the Services and Hardware in accordance with law and Tecoda’s reasonable instructions;
  • mmeet all Dependencies and not use the Software or Hardware with unsupported equipment, hardware, software, configurations or other conflicting services;
  • nnot do, cause or authorise the doing of anything which may adversely affect or jeopardise the validity of Tecoda’s Intellectual Property Rights in the Software;
  • onot do or say anything harmful to the reputation of Tecoda, its Personnel and its business or which may lead a person to cease, curtail or alter the terms of its dealings with Tecoda.

5Intellectual Property Rights (where applicable)

• 5.1Subject to the terms of this agreement, Tecoda agrees to provide to the Customer as part of the Services, a limited, non-transferable, non-exclusive license to use the Software during the Term for the purposes contemplated by this agreement, which in no circumstances includes a right to sell or otherwise commercialise the Software.
• 5.2The Customer must not sub-licence its right to use the Software other than to End Users.
• 5.3If, at any time during or after the Term, the Customer is in breach of this agreement, Tecoda may revoke, restrict or suspend the licence granted in clause 5.1 by notice to the Customer.
• 5.4As between the parties, all right, title and interest in the Tecoda Content is owned and retained by, and vests on creation in, Tecoda
• 5.5As between the parties, the Customer retains all right, title and interest which it holds in the User Content and grants Tecoda a perpetual, transferable, irrevocable, non-exclusive, royalty free licence to use, modify, reproduce, publish, adapt, display, distribute and transmit the User Content in connection with the provision of the Services and for any other purpose contemplated by this agreement.

6Confidential Information

• 6.1Subject to clause 6.2, Tecoda must:
  • akeep any Confidential Information relating to the Customer (Customer Confidential Information) confidential at all times;
  • bnot use the Customer Confidential Information other than for the purpose of exercising its rights and performing its obligations under this agreement;
  • conly use any Personal Information within the Customer Confidential Information in accordance with the Privacy Policy.
• 6.2Tecoda may disclose the Customer Confidential Information:
  • awhere consent to do so is received from the Customer;
  • bas necessary to carry out the Services or any Additional Services;
  • cto its Personnel, officers, professional advisers or agents and its related bodies corporate;
  • dto the extent required by law or to defend Tecoda’s rights.
• 6.3The Customer must:
  • akeep any Confidential Information relating to Tecoda (Tecoda Confidential Information) confidential at all times;
  • bnot use or disclose Tecoda Confidential Information other than for the purpose of exercising its rights and performing its obligations under this agreement.

7Suspension

• 7.1Tecoda may suspend or restrict the Services where:
  • athe Customer fails to meet any of its obligations under this agreement, including where any payment to Tecoda is overdue;
  • ba Delay Event occurs, in which case:
    • iTecoda must promptly provide the Customer with details of the Delay Event and how long Tecoda anticipates it will continue for;
    • iiTecoda will not be liable to the Customer, or in breach of its obligations under this agreement where a breach arises due to, or in connection with the Delay Event;
    • iiiany party may terminate the agreement by notice to the other parties if the Delay Event materially impairs the Services and subsists continuously for 14 days or more; or
  • cthe parties otherwise agree in writing to the suspension or restriction.
• 7.2Any suspension or restriction of the Services pursuant to this clause 7 which arises due to an act or omission of the Customer does not suspend the Customer’s payment obligations under this agreement.

8Term & Renewal

• 8.1This agreement commences on the Commencement Date and continues for the Term unless earlier terminated pursuant to this agreement.
• 8.2Unless either party provides the other party with notice that it does not wish to renew the term of this agreement at least 14 days before the end of the Initial Term or any subsequent term (Current Term), this agreement will automatically renew at the end of the Current Term for the same period of time as the Initial Term (Renewed Term).
• 8.3Tecoda will endeavour to provide the Customer with notice of the upcoming automatic renewal pursuant to clause 8.2 at least 30 days prior to the end of the Current Term.

9Termination

• 9.1Tecoda may terminate this agreement immediately if the Customer commits any of the following acts of default:
  • afails to pay any amount payable to Tecoda under this agreement when due;
  • bsuffers an Insolvency Event;
  • cbreaches a term of this agreement that cannot be remedied; or
  • dbreaches a term of this agreement (other than a breach under clause 9.1(a) to 9.1(c)) and fails to remedy that breach within 30 days of receiving notice to do so from Tecoda.
• 9.2The Customer may terminate this agreement immediately if Tecoda commits any of the following acts of default:
  • abreaches a term of this agreement that cannot be remedied; or
  • bbreaches a term of this agreement (other than a breach under clause 9.2(a)) and fails to remedy that breach within 30 days of receiving notice to do so from the Customer.

10Effect of termination

• 10.1On and from the effective date of termination of this agreement:
  • aTecoda will cease providing the Services, Tecoda Hardware and Software to the Customer;
  • bTecoda may withhold and retain possession of any information or property it holds of the Customer or End Users until any outstanding Fees are paid to Tecoda as required by law;
  • cTecoda may issue tax invoices for any Services provided up to the effective date of termination and all tax invoices issued by Tecoda become due and payable immediately;
  • dthe Customer will not be entitled to any refund of any Fees paid unless required by law or Tecoda agrees otherwise;
  • ethe Customer consents to Tecoda providing the Customer’s Personal Information to a credit rating agency where this agreement is terminated for default under clause 9.1(a);
  • fsubject to clause 10.1(b) and any retention requirement imposed by law, each party must, within 7 days of the effective date of termination of this agreement, deliver up to the other party all of the Confidential Information held, of that other party; and
  • gthe Customer must cease to use, and deliver up to Tecoda all Tecoda Hardware and Tecoda Content in the possession of the Customer, within 7 days of the effective date of termination of this agreement;
  • hthe Customer must pay Tecoda the cost of repair or replacement, at Tecoda’s election, for any Tecoda Hardware that is damaged or not in proper working order and condition;
  • ithe Customer must promptly permit Tecoda to enter the Customer’s premises to recover any property of Tecoda; and
  • jwhere applicable, Tecoda will not be required to provide the Customer with any assistance to migrate its User Content from Tecoda’s servers (where applicable) unless Tecoda agrees to do so as an Additional Service.

11Disclaimer

• 11.1To the maximum extent permitted by law, Tecoda:
  • adoes not provide any guarantee or warranty or make any representation with respect to the Services or the Software except as expressly set out in this agreement;
  • bdisclaims, and the Customer agrees to release Tecoda, its officers and Personnel from, all liability for any Claim or Loss howsoever arising directly or indirectly in connection with the Services, Hardware or the Software, except to the extent that a grossly negligent act or omission of Tecoda caused the Claim or Loss to arise.
• 11.2Without limitation to clause 11.1, the Customer acknowledges that Tecoda is not responsible for any failure or restricted performance of, or inability to provide, the Services or the Software due to an act or omission of the Customer or a third party, including, but not limited to, any:
  • ainternet or intranet connectivity, data restriction, speed or configuration issues; or
  • bissues relating to the services provided by a session initiation protocol provider (e.g. Telstra).
• 11.3Where Tecoda’s liability under this agreement cannot be fully disclaimed, Tecoda’s liability for any Loss the Customer suffers in connection with this agreement (howsoever caused, including by Tecoda’s negligence), is capped at the total Fees paid by the Customer in the 12 months prior to the Loss arising.
• 11.4The cap in clause 11.3 applies to any single or cumulative claims by the Customer, and the Customer agrees that Tecoda may plead this limitation of liability in defence to any claims the Customer may bring against Tecoda for any such Loss.
• 11.5This agreement does not purport to limit any non-waivable rights that the Customer may be entitled to by law. Where non-waivable rights apply to the Customer, to the extent permitted by law, Tecoda limits its maximum liability to the Customer under those laws, at Tecoda’s option, to the supply of the Services or Hardware (as applicable) again or the payment of the cost of having the Services or Hardware (as applicable) supplied again.

12Indemnities

• 12.1The Customer indemnifies and holds harmless Tecoda, its officers and Personnel from and against any Claim or Loss which Tecoda suffers or incurs arising directly or indirectly out of, or in connection with any breach of this agreement by the Customer or an End User.
• 12.2The indemnity given by the Customer in clause 12.1 is limited to the extent that any grossly negligent act or omission of Tecoda caused or contributed to the Claim or Loss arising.

13Variations

• 13.1The terms of this agreement may be varied:
  • aby written agreement between the parties; or
  • bby Tecoda, provided that the Customer receives notice of any proposed change to a material term of the agreement at least 30 days before the change becomes effective (Effective Date) and the Customer is given the opportunity to terminate this agreement prior to the Effective Date

14Notices

• 14.1Notices given under this agreement:
  • amust be in writing and in clearly readable English;
  • bmust be signed by the party giving or making it (or signed on behalf of that party by its authorised representative); and
  • cmay be delivered to a party by hand or by email to that party’s address or email address as shown in this agreement or to such other address or person as a party may specify by notice given in accordance with this clause.
• 14.2A notice is taken to be duly given and received:
  • aif delivered by hand, when delivered; or
  • bif delivered by email, when sent, provided the sender has not received notice of any failure of the notice to be delivered.
• 14.3Despite clause 14.2, notices received after 5 pm in the place of receipt or on a non-Business Day are taken to be received at 9 am on the next Business Day.

15General

• 15.1Relationship between the parties

  Nothing in this agreement will constitute the parties as employer and employee, agent and principal, partners or otherwise.

• 15.2Further assurance

  Each party must (at its own expense) do all things that any other party reasonably requires of it to give the other party the full benefit of any obligations owed to the other party and expressed in this agreement.

• 15.3Counterparts

  This agreement and any variation of this agreement may be executed and take effect in two or more counterparts (including electronically exchanged counterparts), each of which when taken together, will constitute one and the same instrument.

• 15.4Survival

  Clauses 5.5, 6, 11, 12, 14, 15 and 16.1 survive termination of this agreement.

• 15.5No waiver

  The failure, delay or omission by a party to exercise, or to partially exercise, a right, power or remedy under this agreement does not operate as a waiver of that right, power or remedy.

• 15.6Entire Agreement

  To the extent permitted by law, this agreement, the Quote and any other document, to the extent it is expressly incorporated herein, records the entire agreement between the parties in relation to its subject matter.

• 15.7Cumulative rights

  The rights, powers, authorities, discretions and remedies of a party under this agreement do not exclude any other right, power, authority, discretion or remedy.

• 15.8Severability

  If any provision of this agreement is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:

  • awhere the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
  • bwhere the offending provision cannot be read down then that provision must be severed from the agreement in which event, the remaining provisions of this agreement operate as if the severed provision had not been included; and
  • cthe legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected,

  but only to the extent that is consistent with giving substantial effect to the intentions of the parties under this agreement.

• 15.9Governing law and jurisdiction

  This agreement is governed by the law of Queensland, Australia. Each party submits to the jurisdiction of the courts in Queensland in connection with matters concerning this agreement.

• 15.10Assignment by the Customer

  Unless expressly stated otherwise in this agreement, the Customer must not assign, transfer, novate, dispose of, declare a trust over or otherwise create an interest in its rights under this agreement without the prior written consent of Tecoda.

• 15.11Assignment by Tecoda

  Tecoda may assign, transfer, novate, dispose of, declare a trust over or otherwise create an interest in its rights (or any part thereof) under this agreement at any time without consent and the Customer hereby consents to Tecoda transferring, disclosing or otherwise dealing with the Customer and its End User’s Personal Information and User Content for the purpose of effecting the assignment, novation or other transfer of rights under this clause.

• 15.12Sub-Contracting

  Tecoda may, from time to time, sub-contract any part of its obligations under this agreement to third parties at its own expense.

16Definitions and interpretation

• 16.1Definitions

  In this agreement, the following definitions will apply:

  • Additional Feesmeans the fees for any Additional Services.
  • Additional Servicesmeans any services or hardware to be provided to the Customer which are outside of the scope of the Services or Hardware.
  • Business Daymeans a day other than that which is a Saturday, Sunday or public holiday in Maroochydore, Queensland.
  • Claimmeans any claim, counterclaim, demand, cause of action or proceedings (whether based in contract, tort or statute) and any defence to a claim, counterclaim, demand, cause of action or proceedings.
  • Commencement Datemeans the first date that the Services will be provided under this agreement, as specified in Item Error! Reference source not found. of the Reference Schedule.
  • Confidential Informationmeans all information in relation to a party (Discloser) which:
    • ais by its nature confidential;
    • bthe Discloser indicates is confidential; or
    • cthe receiving party (Recipient) ought to know is confidential;

    other than information that the Recipient can establish:

    • awas in the public domain when it was given to the Recipient;
    • bbecomes, after being given to the Recipient, part of the public domain, except through disclosure contrary to this agreement;
    • cwas in the lawful knowledge and possession of the Recipient before it was disclosed to the Recipient, or was otherwise developed independently by the Recipient without reference to or use of any of the Discloser’s Confidential Information; or
    • dwas lawfully received by the Recipient from another entity having the unrestricted legal right to disclose that information without requiring the maintenance of confidentiality.
  • Costsmeans any costs incurred by Tecoda in the course of providing the Services or Additional Services.
  • Current Termhas that meaning given to it in clause 8.2.
  • Delay Eventmeans an event which is beyond the reasonable control of Tecoda and which causes a delay or failure in the performance of Tecoda’s obligations under this agreement, including but not limited to:
    • aany act, delay or omission of the Customer or their agents or other third party which adversely affects Tecoda’s capacity to provide the Services;
    • brestriction to, unavailability of, or unsuitability of personnel, facilities, materials or third-party software or services required for the Services, Hardware or Software where Tecoda has taken reasonable steps to find suitable replacements; or
    • cinclement weather, power failure, earthquake, cyclone, fire, explosion, flood, landslide, lightning storm, war, invasion, pandemic, sabotage, malicious damage, terrorism or civil unrest, order of any government or government authority or change to legislation, strikes or other industrial disputes.
  • Dependenciesmeans the necessary minimum technical requirements for the Services and Hardware to be able to be properly provided, which the Customer or a third party is responsible for arranging, such as internet and intranet connectivity, session initiation protocol connectivity, software and hardware configuration, availability and compatibility and environment requirements, as advised by Tecoda from time to time.
  • End Usermeans individuals who access the Software in connection with the Customer.
  • Feesmeans, as applicable, all amounts payable by the Customer under this agreement, including but not limited to the:
    • aSetup Fees;
    • bHardware Fees;
    • cLicence Fees;
    • dAdditional Fees; and
    • eCosts.
  • Hardwaremeans the Rented Hardware or the Purchased Hardware, as specified in the Quote and described in Schedule 1.
  • Hardware Feesmeans the fees for the Hardware, as specified in the Quote.
  • Initial Termmeans the term specified as such in Item Error! Reference source not found. of the Reference Schedule, commencing on the Commencement Date.
  • Insolvency Eventmeans any of the following events occurring in relation to a party:
    • aa liquidator, receiver, receiver and manager, administrator, official manager or other controller, trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the party;
    • bthe party or the party's property or undertaking becomes subject to bankruptcy or personal insolvency;
    • cthe party is, or becomes unable to, pay its debts when they are due;
    • dthe party ceases to carry on a business; or
    • ean application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party, otherwise than for the purpose of an amalgamation or reconstruction.
  • Intellectual Property Rightsmeans:
    • aall present and future industrial, intellectual or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, algorithms, designs, trade secrets, inventions, discoveries, know-how, confidential information, plant varieties and circuit layouts, including any modifications, adaptations and improvements thereto; and
    • ball statutory and common law rights including the right to sue for damages and other remedies against third parties for infringement or misuse of the related intellectual property.
  • Licence Feesmeans the fees specified as such in the Quote.
  • Lossincludes losses, damages, costs (including legal costs), expenses and liabilities, however arising (regardless of whether those losses were foreseeable or not), including, but not limited to, special, indirect, punitive, unascertainable, contingent, prospective and consequential losses or damages.
  • Personal Informationmeans any information or opinion relating to or about an identified or identifiable natural person or about an individual who is reasonably identifiable.
  • Personnelmeans any person or entity who Tecoda employs or engages as an agent, contractor or otherwise, to provide the Services.
  • Privacy Policymeans Tecoda’s privacy policy as amended from time to time, accessible via the Tecoda Website.
  • Purchased Hardwaremeans the purchased hardware (if any) set out in the Quote.
  • Quotemeans the quote document attached to this agreement.
  • Renewal Datemeans the first day of each Renewed Term.
  • Renewed Termhas that meaning given to it in clause 8.2.
  • Rented Hardwaremeans the rented hardware (if any) as set out in the Quote.
  • Security Interesthas that meaning given to it in the Personal Property Securities Act 2009 (Cth).
  • Servicesmeans the services described in Schedule 1.
  • Setup Completion Datemeans the date that the Software and Hardware, as applicable, has been installed pursuant to Schedule 1.
  • Setup Feesmeans the fees specified as such in the Quote.
  • Softwaremeans the software described in Schedule 1.
  • Tecoda Contentmeans:
    • athe Software;
    • bany data which provides descriptive, technical, statistical and other metadata type, non-Personal Information regarding the use of the Software; and
    • cany other software, information, code or materials in any form, developed, created or provided by Tecoda or its Personnel in the course of providing the Services;

    including all Intellectual Property Rights therein.

  • Tecoda Hardwaremeans the:
    • aRented Hardware; and
    • bPurchased Hardware, until the Fees for the purchase of that Purchased Hardware have been paid in full.
  • Tecoda Websitemeans the website accessible via www.tecoda.com.au as amended from time to time.
  • Termmeans the term of this agreement, being the Initial Term and any Renewed Term, unless terminated earlier pursuant to this agreement.
  • User Contentmeans any content in any form (including but not limited to, pictures, videos, written word and audio files) which the Customer or an End User (as the case may be) submits, posts, uploads, publishes, transmits, stores or otherwise handles in connection with the Services, or as a result of the Services being provided, and includes all Intellectual Property Rights therein.
• 16.2Interpretation

  In this agreement, unless the context otherwise requires:

  • awords denoting any gender include all genders;
  • bheadings are for convenience only and do not affect interpretation;
  • cthe singular includes the plural and vice versa;
  • dany schedule or annexure attached to this agreement forms part of it;
  • ea reference to a party includes its legal personal representatives, successors and permitted assigns;
  • fa reference to an amount means that amount in Australian dollars;
  • ga reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
  • ha reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  • iunless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and
  • ja reference to this agreement means this agreement and includes any variation or replacement of this agreement.

Execution

Executed as an authorised statement in Queensland: Wednesday, 9 November 2022