THE PARTIES AGREE AS FOLLOWS:
1.1 In this Agreement the following expressions have the following meanings, respectively:
||Meaning in this Agreement:
||This document, its Schedule and any annexures.
||The software application specified in the Schedule.
||Information of a party, whether marked confidential or secret or not, which the receiving party (“Recipient”) knows or ought reasonably to know to be confidential, secret or sensitive or which its owner (“Discloser”) would not wish to be published at large or to third parties and includes information concerning Intellectual Property, business methods, business and marketing plans, information technology, finances, transactions, staff and customers of a party, but does not include information which the Recipient can establish to the reasonable satisfaction of the Discloser:
is in the public domain other than through a breach of any obligation of confidence owed to the Discloser; or
is or was made available to the Recipient by a person (other than the Discloser) who, as far as the Recipient knows, was not then under any obligation of confidence to the Discloser in relation to that information; or
is or was developed by the Recipient without the Recipient relying on, referring to or incorporating any of the Confidential Information.
||The exhibition, conference or other event specified in the Schedule, of which Event Organiser is the organiser, manager or in respect of which Event Organiser supplies organisational or management services.
||The party identified in the Schedule.
||The sum specified in the Schedule.
||If a party enters into bankruptcy, provisional liquidation, liquidation, receivership, receiver and managership, voluntary administration or if a “controller” (as defined in the Corporations Act 2001 (Cwth)) is appointed to a party or if a mortgagee takes possession of any assets of a party whether by itself or by an agent or if a party ceases to trade or is unable to pay its debts as they fall due or if a party makes a compromise with its creditors or enters into a scheme of arrangement.
||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.
||The licence granted by Invisage to Event Organiser as set out on clause 2 of this Agreement.
||Core-Apps LLC, a partnership formed and existing under the laws of the USA.
||Services provided by Invisage to Event Organiser as specified in the Schedule.
||The schedule to this Agreement.
||The term of this Agreement and the Licence, as specified in clause 3 of this Agreement.
1.2 The following rules apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply:
(a) Headings are for convenience only, and do not affect interpretation.
(b) A reference to:
(i) legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(ii) a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;
(iii) a party to this document or to any other document or agreement includes a successor, permitted substitute or a permitted assign of that party;
(iv) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
(v) conduct includes any omission, representation, statement or undertaking, whether or not in writing;
(vi) anything (including a right, obligation or concept) includes each part of it; and
(vii) except as otherwise provided, a reference to a period of time (including without limitation, a year, a month and a day) is to a calendar period.
(c) A singular word includes the plural, and vice versa.
(d) A recital, schedule, annexure or a description of the parties forms part of this document.
(e) A word which suggests one gender includes the other gender.
(f) If a word is defined, another part of speech has a corresponding meaning.
(g) Specifying anything in this document after the words including or includes or similar expressions does not limit what else might be included unless there is express wording to the contrary.
(h) This document is not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of this document to protect itself.
2 GRANT OF LICENCE
2.1 Invisage grants the Licence of the Application to the Event Organiser on the terms and conditions contained in this Agreement.
2.2 The Licence is:
(a) a licence to use the Application for the purposes of the Event Organiser to manage, organise or supply management or organisational services in respect of the Event;
(b) non-exclusive to the Event Organiser;
(c) granted for the Term; and
(d) not to be transferred, assigned, novated or to be sub-licensed except as expressly permitted in this Agreement.
3 TERM OF THIS AGREEMENT AND THE LICENCE
3.1 The Term of this Agreement and the Licence commences on the date of this Agreement and endures for the period specified in the Schedule, or, if this Agreement is terminated before that period has expired, the period up to the time when such termination becomes effective.
4 DELIVERY OF THE APPLICATION; INFORMATION TO BE PROVIDED BY EVENT ORGANISER
4.1 Invisage will make the Application available to the Event Organiser and its Event attendees via an on-line distribution platform nominated by Invisage from time to time.
4.2 Event Organiser must provide Invisage with all information necessary to establish the Application for the Event. Invisage will notify Event Organiser of the latest time for provision of such information. If Event Organiser does not provide the information by the time so notified, Invisage may terminate this Agreement and the Licence with immediate effect by written notice to Event Organiser.
5 RELATED SERVICES (IF ANY)
5.1 Invisage will provide the Related Services, if any, specified in the Schedule.
5.2 All Related Services, if any, will be provided by Invisage to a reasonable standard.
6 INTELLECTUAL PROPERTY
6.1 Event Organiser acknowledges and agrees that:
(a) The grant of the Licence to Event Organiser confers a contractual right on Event Organiser to use the Application in accordance with the terms and conditions of this Agreement and does not confer any rights of ownership of the Application or the Intellectual Property in the Application on Event Organiser;
(b) The Owner owns all right, title and interest in and to the Application and the Intellectual Property in the Application;
(c) Event Organiser must not:
(i) reproduce, copy or make any adaptation of the Application other than as expressly permitted by this Agreement;
(ii) modify the Application in any manner whatsoever;
(iii) reverse-engineer, disassemble, decompile or attempt to ascertain the source code of the Application;
(iv) use any trade mark of Invisage or the Owner or which may be applied to the Application without the prior written consent of Invisage; or
(v) delete or obscure any trade mark of Invisage or the Owner which may be applied to the Application.
7 USE OF THE APPLICATION
7.1 Event Organiser may only use the Application for the purposes of managing, organising the Event or assisting in the management or organisation of the Event and must not use the Application for any other purpose.
8 LICENCE FEE AND PAYMENT
8.1 Event Organiser must pay the Fee specified in the Schedule, on or before the date specified in the Schedule and in the manner specified in the Schedule.
8.2 If Event Organiser does not pay monies owing to Invisage by the due date:
(a) Event Organiser must pay interest on the unpaid amount at the rate which is 2% above the rate quoted by Invisage’s bank on commercial overdrafts of $100,000.00;
(b) At the option of Invisage, Invisage may suspend the supply of the Application and/or the Related Services until such time as full payment is made by Event Organiser; and
(c) At the option of Invisage, Invisage may require subsequent orders to be supplied on a “cash up-front on delivery” rather than a delayed payment basis.
8.3 This clause and the exercise of any rights conferred by this clause does not prevent Invisage from exercising other rights or remedies under this Agreement or under the law.
8.4 If the Event is cancelled and Event Organiser provides Invisage with evidence of the cancellation that is satisfactory to Invisage, Invisage must refund to Event Organiser that percentage of the Fee specified in the Schedule.
9.1 All sums specified by Invisage as consideration for a supply of goods or services under this Agreement are specified exclusive of GST unless the contrary is clear and the amount of that consideration will be increased by an additional amount equal to the GST on that taxable supply. Event Organiser must pay the GST on a taxable supply at the same time as the other consideration for that supply is paid.
9.2 For each taxable supply, Invisage must provide Event Organiser with a tax invoice which complies with the GST Act.
10 NO WARRANTIES
10.1 Event Organiser agrees that Invisage makes no representation and gives no warranty or promise that is not expressly contained in this Agreement. In particular, but without limiting the generality of the foregoing, Invisage does not represent, warrant or promise that the Application will be error free or will run without interruption.
11 LIMITATION OF LIABILITY
11.1 Important Notice – Nothing in this Agreement shall be construed as excluding, modifying or limiting (or purporting to do so) any warranty or term implied or imposed by any statute (including the Competition and Consumer Act, 2010 and Fair Trading Acts) and which may not, under the terms of such legislation, be excluded, modified or limited.
11.2 Subject to clause 11.1 and except as expressly provided to the contrary in this Agreement, all terms conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Application or the Related Services are excluded.
11.3 Subject to clause 11.1, the liability of Invisage for breach of this Agreement and for negligence or any other tort (and including any wilful act or omission) will be limited, at the option of Invisage to any one or more of the following:-
(a) if the breach relates to the supply of goods:-
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to the supply of services:-
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
12 TERMINATION FOR CAUSE
12.1 Invisage may, at its option, terminate this Agreement with immediate effect if Event Organiser:-
(a) fails to pay any monies payable to Invisage under this Agreement within seven (7) days of the due date for payment;
(b) commits any breach of this Agreement which, in the reasonable opinion of Invisage, cannot be rectified;
(c) commits any breach of this Agreement (other than non-payment of money) which in the reasonable opinion of Invisage is capable of rectification by Event Organiser and which is not rectified within fourteen (14) days of the date of a written notice by Invisage specifying the breach and requiring its rectification; or
(d) suffers an Insolvency Event or is likely to suffer an Insolvency Event in the opinion of Invisage
12.2 Event Organiser shall at its option be entitled to terminate this Agreement with immediate effect in any of the following events, namely, if Invisage:-
(a) commits any breach of this Agreement which, in the reasonable opinion of Event Organiser, cannot be rectified;
(b) commits any breach of the this Agreement (other than non-payment of money) which is capable of rectification by Invisage and which is not rectified within fourteen (14) days of the date of a written notice by Event Organiser specifying the breach and requiring its rectification; or
(c) suffers an Insolvency Event.
12.3 If this Agreement is terminated for any reason by either party:
(a) the Licence is terminated;
(b) Event Organiser must cease using the Application;
(c) Invisage shall cease providing the Related Services; and
(d) all rights and remedies accrued to the parties to the date of termination shall endure.
13 CONFIDENTIAL INFORMATION
13.1 The parties agree to hold in confidence and refrain from disclosure to third parties all Confidential Information of each other, using a reasonable standard of care to prevent unauthorised access to it.
13.2 The obligations of non-disclosure in this Agreement shall not extend to:
(a) concerning Event Organiser or the Event, to the extent that Invisage discloses that information to the Owner in order to license the Application and perform the Related Services;
(b) information that is public knowledge at the time of receipt or comes into public knowledge thereafter through no act of a party in breach of this Agreement;
(c) known to a party without obligations of confidentiality prior to disclosure by the disclosing party, as evidenced by written records; or
(d) is disclosed by a party as required by law.
14.1 Event Organiser warrants to Invisage that:
(a) it is lawfully entitled to provide to Invisage all personal information provided by Event Organiser to Invisage;
(b) Event Organiser does not breach any law with respect to privacy by providing personal information of any individual to Invisage, including but not limited to the National Privacy Principles contained in Schedule 3 to the Privacy Act 1988 (Cwth);
(c) Event Organiser has complied with the requirements of National Privacy Principle 1.3 and has notified the individuals that their personal information will be disclosed to Invisage and that Invisage may disclose it to the Owner for the purposes of licensing the Application and providing the Related Services.
15 SUBLICENCES AND ASSIGNMENT
15.1 Subject to clause 15.2, Event Organiser must not:
(a) sub-license the Application;
(b) transfer, assign or novate this Agreement;
without Invisage’s prior written consent.
15.2 Event Organiser may permit attendees of the Event todownload or gain access to the Application via a static url.
16.1 Any notice under this Agreement will be delivered by hand (whether by the relevant party or its agent or courier) or sent by facsimile transmission to the address of the recipient party specified in the Schedule or as otherwise notified from time to time in writing. Any notice so delivered will be deemed to have been received on the date of such delivery or facsimile transmission unless the same shall be outside the hours of 9am to 5pm on business days (being a day other than a Saturday or Sunday or a public holiday where the notice is served), in which case such notice will be deemed to have been served on the following business day. Notices must not be sent by email only; however a party may send a copy of a notice to the other party by email for the sake of convenience.
17 GOVERNING LAW
17.1 The formation, performance, interpretation and enforcement of this Agreement is governed by the laws applicable in Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that place.
18.1 No provision of this Agreement that is capable of operation after completion merges on or by virtue of completion.
18.2 This Agreement contains the entire understanding between the parties in relation to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this Agreement other than those expressly stated in or necessarily implied by law.
18.3 No failure, delay, relaxation, or indulgence by a party in exercising any power of right conferred on it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it or the exercise of any other power of right under this Agreement.
18.4 Where anything requires a party’s consent or approval, that consent or approval may be given conditionally or withheld by it as it decides unless this Agreement expressly provides otherwise.
18.5 If any provisions of this Agreement are invalid, void, or unenforceable, all other provisions which are capable of separate enforcement without regard to an invalid, void or unenforceable provision are and will continue to be of full force and effect in accordance with their terms.
18.6 This Agreement binds and ensures for the benefit of the parties, their respective successors (including, in the case of natural persons, their legal personal representatives) and permitted assigns.
18.7 This Agreement may not be varied except by a written instrument executed by the parties.
18.8 Each party agrees to execute all instruments which are necessary to give effect to the provisions of this Agreement.
18.9 This Agreement may be executed in any number of counterparts and all counterparts, when executed and taken together, constitute this Agreement.