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Pointer Pty Ltd provides marketing and sales services to enable individuals, businesses, and organisations to increase their revenue through increased sales and marketing activities, (Pointer service, and software and systems used in provision of this service referred to as Pointer Application).
The following terms and conditions (Terms), along with the Proposal and any notices posted by Pointer Pty Ltd on the Pointer Pty Ltd Website from time to time form the agreement between Pointer Pty Ltd and the Customer regarding the terms and conditions on which Pointer Pty Ltd will provide the Customer with access to and use of the Pointer service (Agreement).
By accepting or otherwise confirming acceptance of the Proposal the Customer acknowledges and agrees that it will be bound by this Agreement (including these Terms) and the Customer’s access to and use of the Pointer Pty Ltd services will be governed by this Agreement.
Any person who accepts the Proposal and agrees to the Terms on behalf of the Customer warrants to Pointer Pty Ltd that they are authorised on behalf of the Customer to accept the Proposal and Terms and to bind the Customer to the Agreement. Pointer Pty Ltd will only enter into an agreement with an individual or individuals based on the fact they are holding themselves out as having authorisation and authority to enter into the agreement on behalf of the organisation.
In these Terms, unless the context otherwise requires:
(a) Additional Services means any services which Pointer Pty Ltd agrees to provide to theCustomer during the Term in addition to the Subscription Services, includingthe provision of consulting, customisation, implementation, training, integration or other services.
(b) Authentication Credential means the username and password or other means of authentication whichAuthorised Users are required to provide in order to be able to access thePointer Pty Ltd Application.
(c) Authorised Users means the current or prospective employees or volunteers, agents, contractors or other representatives of the Customer or persons involved in the activities or operations of the Customer who are issued with an AuthenticationCredential to access the Pointer Application, either on behalf of the Customer or on their own account.
(d) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
(e) Pointer means (ACN 641 653 312)\
(f) Pointer Applications means any software and system that Pointer use in the process of providing its services. These software may vary from time to time.
(g) Pointer Systems means the computer servers or other hardware or systems used by Pointer in connection with its provision of the Services.
(h) Pointer User Documentation means any manuals, guides, reference materials, reports or other similar documents in any form made available by Pointer to the Customer in connection with the Pointer service.
(i) Pointer Website means the website located at https://www.PointerStrategy.com.au or the website located at such other URL that Pointer notifies the Customer of from time to time.
(j) Commencement Date means the commencement date set out in the Proposal or, if no date is set out in the Proposal, the date the Customer confirms its acceptance of theProposal either in writing or electronically.
(k) Confidential Information means any information provided by a party to the other party (whether provided before or after the Commencement Date) in connection with theSubscription Services, any Additional Services or this Agreement and in the case of Pointer, includes the Proposal, the Pointer User Documentation or any other information regarding the Pointer Application but does not include information which is in or becomes part of the public domain, other than through a breach of this Agreement or of an obligation of confidence, or information which a party proves was independently acquired or developed without breaching any of the obligations set out in this Agreement.
(l) Consequential Loss means:
(i) all indirect and consequentialLoss;
(ii) all Loss beyond the normal measure of damages; and
(iii) all Loss of revenue, Loss of data,Loss of reputation, Loss of profits, Loss of actual or anticipated savings,Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services;
(m) Consumer has the meaning given in section 3 of the Australian Consumer Law.
(n) Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of theAustralian Consumer Law.
(o) Customer means the party named as the Customer in the Proposal.
(p) Customer Content means any and all content uploaded to the Pointer Application by or on behalf of the Customer or its Authorised Users, including all Data.
(q) Data means all information, images, Documents and other data (whether relating to the Customer or its Authorised Users or otherwise) uploaded to thePointer Application by or on behalf of the Customer or its Authorised Users.
(r) Default Rate means the interest rate which is fixed from time to time under section2 of the Penalty Interest Rate Act 1983 (Vic).
(s) Documents means any qualification, credentials, certificates, certification, record of compliance, record of training or achievement, record of inspection or examination, record of attendance, means of identification, assessment, licence, permit, approval, consent or other record or document about a person or organisation (including the Customer) which is issued by a person, including an educational institution or Government Authority and, for the avoidance of doubt, includes (where relevant) criminal history record checks, working with children checks, passports, visas and immunisation records.
(t) Fees means any fees or other amounts payable by the Customer to Pointer under this Agreement, including the Set Up Fees, the Subscription Fees, theOptional Usage Fees and any fees for the provision of Additional Services.
(u) Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war (declared or undeclared)civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other naturalcalamity or an ongoing internet or telecommunications outage or impairment.
(v) Further Term means consecutive periods of time (such as monthly or 12 monthly) asset out in the Proposal or agreed between the parties in writing commencing immediately after the expiry of the Initial Term or the previous Further Term(as applicable)
(w) Government Authority means any governmental, semi-governmental, municipal, statutory, judicial or quasi-judicial authority, department, agency, body, entity, organisation, commission or tribunal. It also includes any self-regulatory organisation established under statute and any securities exchange.
(x) Improvement means any modification, alteration, development, new use or other change to the Pointer Application which makes it more accurate, more useful,more functional, more efficient, more cost effective or in any other way preferable.
(y) Initial Term means the period of time set out in the Proposal or agreed between the parties in writing which begins from the Commencement Date (such as one monthor 12 months).
(z) Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
(aa) Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above.
(bb) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
(cc) Optional Usage Fees means fees for optional features of the Pointer Application, as specified in the Proposal or otherwise agreed between Pointer and the Customer from time to time.
(dd) Payment Facility means any credit card, bank card, bank account or other payment facility, details for which are provided by the Customer to Pointer in connection with the payment of the Fees.
(ee) PDH Services means services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
(ff) Proposal means the proposal provided by Pointer to the Customer in respect of the Subscription Services and the Customer’s access to and use of the PointerApplication under which the Customer accepts and agrees to be bound by theseTerms.
(gg) Set Up Fees means the fees (if any) for setting up the Pointer Application for use by the Customer and the establishment of the Customer’s account, as specified in the Proposal or otherwise agreed between Pointer and the Customer from time to time.
(hh) Subscription Fees means the subscription fees payable for access to and use of thePointer Application and the provision of the Subscription Services, as specified in the Proposal or otherwise agreed between Pointer and the Customer from time to time.
(ii) Subscription Services means the services described in clause 3.2.
(jj) Support Hours means the hours in which Pointer will provide any applicable SupportServices to the Customer, as published on the Pointer Website and updated byPointer from time to time.
(kk) Support Services means any technical or user support services in relation to the PointerApplication that the Customer is entitled to receive under this Agreement.
(ll) Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any Government Authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.
(mm) Term has the meaning given in clause 2.
(nn) Termination Date means the earlier of:
(i) the date of termination of this agreement by the Company or the Supplier; and
(ii) the date of expiry of this agreement.
(oo)
(pp)
(qq) Third Party Application means any product, service, system, application or internet site integrated or interfaced with the Pointer Application that is owned or operated by a Third Party Provider, and that is used by the Customer or any AuthorisedUser in connection with the Pointer Application.
(rr) Third Party Provider means any third party that provides support, technology and/or other products or services that are used by the Customer or any Authorised User in connection with the Pointer Application.
(ss) Trial Subscription means any access to the version of the Pointer Application and/or theSubscription Services that Pointer makes available to customers on a trial basis from time to time.
(tt) Unacceptable Content means any content which, in Pointer’s reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct.
(uu) User Terms means terms and conditions between Pointer and the Authorised User regarding the Authorised User accessing and using the Pointer Application.
In this Agreement, headings are inserted for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
(d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and
(e) no provision of this Agreementwill be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of theprovision in the Agreement.
(a) This Agreement commences on theCommencement Date and will continue for the Initial Term, unless terminated earlier in accordance with clause 14.
(b) At the expiry of the Initial Term or any Further Term, this Agreement will automatically renew for each FurtherTerm, unless a party provides written notice to the other party at any time prior to the expiration of the Initial Term or the then current Further Term(as the case may be) that the Agreement will not be renewed and will instead expire at the end of the Initial Term or that Further Term (as applicable).
(c) The Customer may provide written notice under clause 2(b) by either:
(i) sending notice bye mail to info@Pointer.com.au; or
(ii) clicking on the cancellation or other similar button (if any) located within the Pointer Application.
(iii) If notice is provided in accordance with clause 2(b) then Pointer will continue to provide theSubscription Services and the Customer will continue to the pay the Fees in accordance with this Agreement until the end of the Initial Term or then current Further Term (as the case may be).
During the Term Pointer will provide theSubscription Services to the Customer on the terms and conditions of thisAgreement.
The Subscription Services will consist ofPointer:
(a) setting up the Pointer Application for use by the Customer and its Authorised Users (provided that any set up other than Pointer’s standard set up will constitute an Additional Service);
(b) providing the Customer and its Authorised Users with access to and use of the Pointer Application during the Term;
(c) providing the Customer with access to and use of the PointerUser Documentation during the Term;
(d) providing Support Services to the Customer in accordance with clause 11 (if the Proposal specifies the Customer is entitled to SupportServices or the parties otherwise enter into a written agreement regarding the provision of Support Services); and
(e) any other services expressly set out in the Proposal.
(a) In addition to the Subscription Services, if requested by theCustomer and accepted by Pointer, Pointer may also provide Additional Services to the Customer.
(b) Unless otherwise agreed, any Additional Services will be provided on the terms and conditions of this Agreement, provided that the Fees payable by the Customer for the Additional Services will be the Fees Pointer notifies the Customer of (which notice Pointer will endeavour to provide promptly after the Customer requests those Additional Services and before providing those Additional Services).
The Customer acknowledges and agrees that all rights granted to the Customer under this Agreement (including all rights to use the Pointer Application) are non-exclusive.
Pointer may vary the features, functions and other benefits available to Customers and Authorised Users in respect of thePointer Application and Subscription Services at any time and without any requirement to provide prior notice to the Customer.
(a) The Customer acknowledges that Pointer retains the sole discretion regarding the features, functions and other benefits of the PointerApplication and Subscription Services and nothing in this Agreement requiresPointer to provide or maintain access to any features, functions or other benefits in respect of the Pointer Application and Subscription Services.
(b) The Customer also acknowledges and agrees that nothing in this Agreement limits Pointer’s right to suspend, discontinue, alter or limit access to any such features, functions or other benefits from time to time.
a) Pointer may from time to time make the Pointer Application, the Subscription Services or any part of the PointerApplication or Subscription Services available as a Trial Subscription.
b) Where the Customer uses thePointer Application, the Subscription Services or any part of the PointerApplication or Subscription Services as part of a Trial Subscription, theCustomer acknowledges and agrees that such use will be limited to the trial period nominated by Pointer and may be subject to other restrictions or limitations determined by Pointer.
The Customer acknowledges that the PointerApplication may interact with Third Party Applications or require Third PartyApplications or Third Party Providers be used to provide particular features or functionality. The Customer acknowledges that access to such Third PartyApplications or services and any support for such Third Party Applications or services must be obtained directly from the relevant Third Party Provider at the Customer's cost. Pointer does not make any representations or warranties regarding any such Third Party Applications or services and will not be responsible for any issues in respect of Third Party Applications or services or any Loss suffered by the Customer in connection with any Third PartyApplications or services or the Customer's dealings with Third Party Providers.
The Customer and/or the Authorised Users will set the Authentication Credentials for use of the Pointer Application.
The Customer must:
(a) ensure that AuthenticationCredentials set by the Customer or the Authorised Users comply with best practice regarding the strength and security of passwords;
(b) ensure that each AuthenticationCredential is securely maintained and used only by the Authorised User to whom the Authentication Credential has been issued;
(c) comply with any policies, guidelines or other requirements issued by Pointer from time to time in any way relating to Authentication Credentials;
(d) if an Authorised User ceases to be employed by or contracted to the Customer, ensure that the Authorised User is immediately unlinked from the Customer’s account and not authorised to access and use thePointer Application on behalf of the Customer, however the Customer acknowledges that the Authorised User may use the Pointer Application (for example where the Authorised User is linked to another organisation that uses the Pointer Application);
(e) immediately notify Pointer if:
(i) an Authentication Credential is lost, stolen, missing or is otherwise compromised; or
(ii) the Customer becomes aware of any breach of the provisions of this Agreement by the Authorised User, in which case the Authentication Credentials may be suspended until such time as the breach is remedied to Pointer’s satisfaction; and
(iii) not transfer or allowAuthentication Credentials to be transferred between or amongst AuthorisedUsers or other individuals or systems and take all reasonable steps to ensure that Authentication Credentials are not transferred.
TheCustomer acknowledges and agrees that Pointer reserves the right at any time and from time to time to change and/or revoke Authentication Credentials byproviding the Customer or the relevant Authorised User with written notice.
The Customer will be responsible for:
(a) their own and their authorised representatives day to day use of the Pointer Application;
(b) uploading all Data and otherCustomer Content into the Pointer Application (other than where Pointer uploadsData or Customer Content as an Additional Service to the Customer);
(c) obtaining all consents, authorisations, permits or approvals (including any relevant consents from Authorised Users)necessary:
(i) for Pointer and its personnel to access, use and disclose the Data and other Customer Content as contemplated inthis Agreement;
(ii) for the Data and other CustomerContent to be uploaded into the Pointer Application;
(iii) for the Data and other CustomerContent to be stored on the Pointer Systems;
(iv) for Pointer to disclose the Data and other Customer Content to third parties as contemplated or permitted by this Agreement; and
(v) to otherwise access and use thePointer Application as contemplated by this Agreement;
(d) ensuring that all Authorised Users enter into and comply with the User Terms;
(e) ensuring all Data and otherCustomer Content is complete, current, accurate and not misleading and does not infringe the Intellectual Property rights of any third party;
(f) ensuring that the use of thePointer Application by the Customer and each of its Authorised Users and the uploading and storage of the Data and other Customer Content complies with all applicable laws, regulations or codes of conduct (including the Privacy Act1988 (Cth) and any other applicable privacy laws);
(g) satisfying itself that the PointerApplication is compatible with its own hardware, software and internet and network capabilities and maintaining all hardware, software, Third PartyApplications and other technology necessary to be able to access and use thePointer Application;
(h) ensuring that it maintains back up or alternate systems for use if the Pointer Application is unavailable or is otherwise unable to be used by the Customer;
(i) ensuring no Unacceptable Content is uploaded to the Pointer Application or stored in the Pointer Systems;
(j) ensuring that all Authorised Users are properly trained regarding the use of the Pointer Application;
(k) ensuring that each Authorised User has all licences, certifications, authorisations, permissions or other approvals required to be able to access and use the Pointer Application; and
(l) any acts or omissions committed by the Authorised Users or the other employees, officers, contractors or representatives of the Customer or any of its related parties in relation to the Pointer Application.
The Customer must, and must ensure that eachAuthorised User:
(a) access and use to the PointerApplication is only for the Customer’s internal business purposes and, in the case of an Authorised User, that Authorised User’s own personal and internal business purposes;
(b) only use and copy the Pointer UserDocumentation to the extent necessary to use the Pointer Application and receive the Subscription Services;
(c) providing all co-operation, assistance, system access and other inputs or assistance reasonably requested by Pointer in relation to the provision of the Subscription Services or anyAdditional Services;
(d) comply with all policies regarding the use of the Pointer Application which Pointer notifies the Customer.Notification may be provided by Pointer making the relevant policies accessible via the Pointer Website;
(e) not use the Pointer Application in any way or for any purpose other than as contemplated by this Agreement and must not use the Pointer Application in any manner which, in Pointer’s reasonably held opinion, is unreasonable, threatening or abusive;
(f) comply with the Privacy Act 1988 (Cth) and any other privacy laws, regulations and codes when using the Pointer Application or doing anything permitted by, or in connection with, this Agreement;
(g) not modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of thePointer Application;
(h) not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Pointer Application;
(i) not upload to the PointerApplication any viruses, bugs, worms, trojan horses, harmful codes or any other form of defect or contaminant which could cause temporary or permanent damage to or will otherwise impair or harm or cause the malfunction of the PointerApplication or the software or hardware of Pointer or any third party;
(j) not distribute any part of thePointer Application, Pointer User Documentation or Subscription Services for commercial purposes or otherwise sub-licence or resell the Pointer Application,Pointer User Documentation or Subscription Services;
(k) not create derivative works from all or any part of the Pointer Application;
(l) not transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Pointer Application or any compilation derived from the Pointer Application;
(m)not make any part of the PointerApplication publicly available;
(n) obtain from any individual whose personal information (as that term is defined in the Privacy Act 1988 (Cth)) is to be uploaded to the PointerApplication by or on behalf of the Customer (including by Pointer), the consent of that individual to the relevant uploading, use, storage and disclosure of their personal information; and
(o) not permit any person other than the Authorised Users to use the Pointer Application and ensure that thoseAuthorised Users, in using the Pointer Application, comply with the terms and conditions of this Agreement as if they were the Customer.
(a) The Customer acknowledges and agrees that:
(i) where any Data or other CustomerContent is required to be provided to Pointer before Pointer can proceed with or complete the provision of the Subscription Services, the Customer must ensure that such Data and other Customer Content is supplied or made available to Pointer within a reasonable time so as to enable Pointer to deliver theSubscription Services;
(ii) Pointer may disclose Data and other Customer Content to Government Authorities or other third parties to seek to verify the accuracy of the relevant Data and other Customer Content (where such disclosure is necessary for the provision of the Subscription Services)and the Customer consents, and must procure the consent of all AuthorisedUsers, to all such disclosures; and
(iii) the accuracy of any verification of Data and other Customer Content performed by Pointer using information available from any publicly available databases or systems (including data bases or systems made available by Government Authorities or other third parties)will be limited to the information contained in that database or system;
(iv) if Pointer believes that any Data or other Customer Content is not accurate, current or complete then Pointer may, but is not required to, update or vary that Data or other CustomerContent. The Customer acknowledges and agrees that Pointer is not liable for any loss or damage suffered by the Customer as a result of Pointer updating or varying Data or Customer Content under this clause 8.1(a);
(v) the Customer acknowledges and agrees that Pointer does not control, is not responsible for and provides no warranty as to the availability, accuracy, currency or completeness of the Data and other Customer Content or any information or Documentation that uses or is derived from the Data or other Customer Content (including any report prepared under clause 8.2(a)(ii)) or content in databases or systems made available byGovernment Authorities or other third parties and Pointer is not responsible for the content of the Data and other Customer Content, and
(vi) the Customer must not make any claim against Pointer in respect of the Data and other Customer Content or other wise seek to hold Pointer responsible for the provision, content, accuracy or reliability of the Data and other Customer Content.
(b) The Customer acknowledges and agrees that the provision of the Subscription Services and Additional Services will be subject to and conditional on relevant, complete and accurate Data being made available from the Pointer Application or otherwise being provided to Pointer.
(c) The Customer is responsible for:
(i) verifying that any Data and otherCustomer Content which it is able to access via the Pointer Application is accurate, current and complete; and
(ii) its use of the Data and otherCustomer Content.
(d) The Customer acknowledges that thePointer Application may provide functionality that allows the Customer to:
(i) issue a record of the Documents held by a person (including Authorised Users);
(ii) issue a record of the persons (includingAuthorised Users) who hold a specified Document; and
(iii) issue a record of the Documents held by the Customer;
(iv) allow the Customer to issue their own Documents to a person (including Authorised Users),
The Customer is solely responsible for any such record or Document which is issued or created by or on behalf of theCustomer using the Pointer Application, including verifying the accuracy of the record or Document.
(a) The Customer acknowledges that:
(i) Pointer is under no obligation to provide back up, archiving, record keeping or other similar services in respect of the Data and other Customer Content and the Customer is responsible for implementing and maintaining its own back up, archiving, record keeping and data retrieval procedures in respect of the Data and other Customer Content and any report prepared under clause 8.2(a)(ii);
(ii) Pointer may, in its absolute discretion, provide the Customer with a report setting out certain Data or other Customer Content held by Pointer or otherwise stored on the PointerApplication at the date of the report; and
(iii) Pointer shall not be held liable for any Loss which the Customer may suffer as a result of any Data or otherCustomer Content that has been deleted, destroyed or otherwise lost (including where such Data or other Customer Content is deleted by an Authorised User).
(b) Notwithstanding clause 8.2(a), theCustomer acknowledges and agrees that Pointer may, after the expiry or termination of this Agreement, keep and maintain copies of the Data and otherCustomer Content.
The Customer acknowledges that:
(a) subject to any applicable laws,Pointer is under no obligation to delete, destroy or otherwise make unavailable any Data or other Customer Content including, without limitation, upon the expiry or termination of this Agreement; and
(b) Pointer may make available to anAuthorised User any Data and Customer Content which is linked, about or otherwise connected to that Authorised User even after the expiry or termination of this Agreement.
Pointer will take all reasonable steps to ensure the security and safety of the Data and other Customer Content and information stored on the Pointer Systems, including by implementing and maintaining reasonable and current data protection and virus screening procedures and technologies.
Provided Pointer complies with its obligations under clause 9.1, Pointer will not be liable for any Loss suffered by theCustomer which arises out of or in connection with:
(a) any computer viruses being transferred by or obtained as a result of the use of the Pointer Application;
(b) any hacking into or other similar attacks on the PointerApplication or the Pointer Systems; or
(c) any other data security issues in respect of the PointerApplication or the Pointer Systems.
The Customer acknowledges that nothing in theAgreement imposes obligations on Pointer to develop, release or install for theCustomer any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Pointer Application (Updates), provided however that if Pointer does develop or release any Updates, it may require that all suchUpdates be used by the Customer.
During the Term, where the Customer is entitled to receive Support Services as part of the Subscription Services (as detailed in clause 3.2), Pointer will, during the Support Hours, provide theCustomer and its Authorised Users with technical support in relation to the use and operation of the Pointer Application. Such technical support will comprise of Pointer, during the Support Hours, receiving and responding to telephone, email and online technical support queries submitted by the Customer or itsAuthorised Users.
To be able to receive Support Services, theCustomer and its Authorised Users must comply with all support procedures or directions which Pointer notifies the Customer of from time to time.
The Customer acknowledges that the SupportServices described in clause 11.1 are the only technical or user support services (if any) Pointer will provide to the Customer as part of the SubscriptionServices.
The Customer must use only the most recent version of the Pointer User Documentation provided by Pointer, and must followPointer’s instructions concerning the return or destruction of any superseded versions of the Pointer User Documentation.
During the Term, the Customer agrees to pay toPointer the Subscription Fees for the provision of the Subscription Services.The Customer also agrees to pay any other amounts which may become payable toPointer under this Agreement including fees for Additional Services, the Set UpFees or the Optional Usage Fees as is mutually agreed either orally, in writing or by act.
(a) Pointer will issue theCustomer with a tax invoice that can include items such as Set Up Fees,Subscription Fees, Optional Usage Fees and fees for Additional Services payable by the Customer (Tax Invoice) in accordance with the terms of payment set out in the Proposal.
(b) All payments must be made inAustralian dollars and Pointer may charge a reasonable fee for the costs incurred by Pointer in converting any payment from the Customer to Australian dollars.
(c) Where Pointer agrees to amounts being paid by a method other than direct debit, all amounts payable by the Customer must be paid within 14 days of the date of the relevant amounts being invoiced to the Customer by Pointer.
If the Customer fails to pay any amounts due to Pointer under this Agreement (including where any payment via a PaymentFacility is declined or otherwise rejected) then, without prejudice toPointer’s other rights regarding the non payment:
(a) Pointer may charge the Customer interest (both before and after any judgement) on the unpaid amount at theDefault Rate, which interest will accrue and be chargeable from the first day on which such amount becomes overdue until Pointer receives payment of all such amounts (including all interest) by way of cleared funds; and
(b) Pointer may issue a notice to theCustomer stating that the Tax Invoice is overdue (Overdue Notice). If Pointer does not receive payment of the relevant Fees within 14 days of the date of theOverdue Notice, Pointer may cease providing the Subscription Services and anyAdditional Services and may disable the Customer’s and any Authorised User’s access to the Pointer Application until such time as the outstanding amount is paid in full (together with any interest). Pointer will not be liable for anyLoss suffered by the Customer as a result of Pointer exercising its rights under this clause 12.3(a).
(c) It is an express condition of this agreement, that the Pointer Services will be provided so long as the fees charged by Pointer are paid by the customer.
(a) Unless otherwise expressly agreed in writing by Pointer, Pointer may increase the Fees payable by the Customer once in every 12 month period by providing notice in writing to the Customer at least 14 days before the end of the then Initial Term or Further Term (as the case may be).
(b) Any increase in the Fees notified by Pointer under clause 12.4(a) will become effective on and from the commencement of the next Further Term.
If Pointer reasonably believes that anyUnacceptable Content has been uploaded into the Pointer Application or is beingstored on the Pointer Systems, Pointer may request the Customer either to remove the Unacceptable Content or disable access to the UnacceptableContent.
Pointer will have the right (but not the obligation) to remove Unacceptable Content from the Pointer Application orPointer Systems or disable access to Unacceptable Content where the Customer has not complied with a request from Pointer under clause 13.1 within five days of the date of the request.
Nothing in this Agreement imposes obligations on Pointer to monitor the Pointer Application for Unacceptable Content or otherwise monitor or screen Data and other Customer Content for Unacceptable Content
Either party may terminate this Agreement at any time and without cause by providing the other party with no less than 30days’ written notice of termination either by email or post.
(a) Without limiting clause 14.1,Pointer may, by written notice to the Customer, terminate this Agreement with immediate effect:
(i) if the Customer fails to comply with any written notice issued by Pointer requiring the Customer to remedy a breach, non-observance or non-performance of the Customer’s obligations under this Agreement within 7 days of receiving that notice from Pointer;
(ii) if the Customer commits a breach of this Agreement which is incapable of remedy;
(iii) if the Customer is the subject of an Insolvency Event; or
(iv) if the Customer uses the PointerApplication in any way which Pointer considers may damage the reputation, brand or goodwill of Pointer or the Pointer Application.
(b) Without limiting clause 14.1, theCustomer may, by written notice to Pointer, terminate this Agreement with immediate effect in accordance with clause 22.7.
Upon termination or expiry of this Agreement taking effect:
(a) the Customer must immediately:
(i) cease using the PointerApplication;
(ii) pay to Pointer all Fees, expenses or other sums payable to Pointer under this Agreement which have accrued or are payable as at the date of termination;
(iii) pay to Pointer an amount equal tothe Fees which, had the Agreement not been terminated, would have been payable by the Customer to Pointer had Pointer, until the end of the then current Term, continued to provide the same Subscription Services for the remainder of the then current Term (provided the Customer will not be required to pay such amount if Pointer terminates under clause 14.1);
(iv) return to Pointer any Pointer UserDocumentation in the Customer’s possession or control; and
(v) destroy any Pointer UserDocumentation in the Customer’s possession or control that is stored digitally; and
(vi) provide Pointer with written confirmation that it has completed its obligations under this clause 14.3(a);
(b) if Pointer terminates thisAgreement under clause 14.1, Pointer must refund to the Customer any amounts paid by the Customer to Pointer in respect to the Fees which, calculated on a pro rata basis, Pointer (acting reasonably) determines relate to the period from the date of termination to the end of the then current Term; and
(c) Pointer ceases to have any obligations under this Agreement with respect to the provision of Subscription Services or any Additional Services and may disconnect the Customer’s access to the PointerApplication and disable all Authentication Credentials.
The termination or expiry of this Agreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination or expiration, including the parties’ rights and obligations under clauses 1, 7, 14, 15, 16,18, 19, 20 and 22, and those rights or obligations remain in full force and binding on the party concerned.
Where a party (Recipient) receives ConfidentialInformation from the other party under this Agreement or otherwise in connection with the Subscription Services, the Recipient must:
(a) keep the Confidential Information confidential;
(b) subject to clause 15.2, not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement; and
(c) establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure.
Notwithstanding clause 15.1, the Recipient may use or disclose Confidential Information to the extent necessary to:
(a) perform its obligations or exercise its rights under this Agreement (including, in the case of Pointer, for the purposes of providing the Subscription Services);
(b) comply with any law, binding directive of a regulator or a court order;
(c) comply with the listing rules of any securities exchange on which its securities are listed; or
(d) obtain professional advice in relation to matters arising under or in connection with this Agreement.
The Customer agrees that, for the purposes of promoting and marketing Pointer and the Pointer Application, Pointer is entitled to notify others of Pointer’s relationship with the Customer andPointer’s provision of the Subscription Services and any Additional Services to the Customer.
Where the customer and Pointer have entered into a separate confidentiality agreement, to this Customer Agreement, the separate confidentiality agreement will be taken to be the governing reference for the purpose of the confidential obligations of the customer and Pointer.
(a) The Customer acknowledges that nothing in this Agreement grants the Customer any ownership of or rights in respect of the Intellectual Property in the Pointer Application or any PointerUser Documentation, any Intellectual Property in any materials created as a result of the performance of the Subscription Services or the AdditionalServices or any Improvements to the Pointer Application or Pointer UserDocumentation created in connection with this Agreement.
(b) Any Intellectual Property in respect of the Pointer Application or Pointer User Documentation (including in any Improvements) which is created by or vests in the Customer during the Term is assigned to Pointer immediately upon the Intellectual Property being created or vesting in the Customer and the Customer agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.
(c) During the Term Pointer grants theCustomer a limited, non exclusive and revocable licence to use the IntellectualProperty referred to in clause 16.1(a) solely to the extent such use is necessary for the Customer to receive the Subscription Services or AdditionalServices. Unless revoked earlier by Pointer, the licence granted under this clause 16.1(c) terminates immediately upon the termination or expiry of thisAgreement.
(a) Pointer acknowledges that, as between Pointer and theCustomer, the Customer will own all Intellectual Property in respect of theData and Customer Content.
(b) The Customer grants Pointer, and must procure from anyAuthorised User, a non-exclusive, irrevocable, royalty free licence to reproduce and otherwise exploit the Data and Customer Content and any other relevant Intellectual Property which is owned by, or licenced to, the Customer for:
(i) the purposes of providing the Subscription Services and anyAdditional Services to the Customer;
(ii) any purposes which Pointer considers are ancillary to its provision of the Subscription Services or Additional Services or are otherwise necessary for the proper operation of the Pointer Application;
(iii) the purposes of Pointer undertaking data analytics or other similar activities;
(iv) any purposes relating to the development or improvement of the Pointer Application or the other products and services of Pointer; and
(v) (v) any other internal business purposes of Pointer, provided that Pointer agrees that it will not commercially exploit the personal information of an Authorised User (unless it is de-identified)without that Authorised User’s prior written consent.
(c) The Customer grants Pointer a non-exclusive, royalty free licence to reproduce and otherwise exploit any Intellectual Property which is owned by, or licenced to, the Customer (including any logos or trade marks) for the purposes of Pointer promoting and marketing Pointer and the Pointer Service.
(a) Pointer reserves the right to determine which of its employees, agents, contractors or other representatives will be assigned to perform the Subscription Services and to replace or reassign those personnel during the Term.
(b) The Customer agrees and acknowledges that Pointer may subcontract the performance of any of its obligations or the exercise of any of its rights under this Agreement asPointer considers appropriate from time to time provided that Pointer shall at all times remain responsible for all work of any subcontractors.
Subject to clauses 19.1 and 19.2, Pointer does not warrant or guarantee that:
(a) the Pointer Service will be compatible with, or capable of being used on or in connection with, the Customer’s computer and communications systems;
(b) the Customer’s access to thePointer Service will be uninterrupted or error free;
(c) the Pointer Service and any Data and other Customer Content will be accurate, reliable or fit for any particular purpose; or
(d) the Customer will derive any particular benefits from the provision of the Subscription Services.
The Customer acknowledges and warrants that:
(a) it has relied on its own skill and judgment in the selection of the Pointer Service; and
(b) it has satisfied itself that thePointer Service is fit for all the purposes which the Customer requires it for.
If the Customer is a Consumer and Pointer supplies PDH Services to the Customer, Pointer acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of theConsumer Guarantees as they apply to the PDH Services supplied by Pointer and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
If the Customer acquires the SubscriptionServices from Pointer as a Consumer and the relevant Subscription Services are non PDH Services, then Pointer’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those Subscription Services is, at Pointer’s option, to:
(a) the supplying of the relevant services again; or
(b) the payment of the cost of having the relevant services supplied again.
Subject to clauses 19.1, 19.2 and 19.5 and notwithstanding any other provision of this Agreement, the maximum aggregate liability of Pointer for any Loss or claim, however caused or arising, suffered by theCustomer in connection with this Agreement is limited to the total amount of the Fees paid by the Customer to Pointer under this Agreement during the 12month period prior to the Customer first notifying Pointer of the relevant Loss or claim. The limitation set out in this clause 19.3 is an aggregate limit for all claims or Loss, whenever made.
Any claim by the Customer against Pointer forLoss however caused or suffered by the Customer in connection with thisAgreement must be made within 365 days of the Customer becoming entitled to make the claim and any claim not made within this period is absolutely barred.
Neither party will be liable for anyConsequential Loss (however caused) suffered or incurred by the other party in connection with this Agreement. This clause applies even if the party knew or ought to have known that the relevant Consequential Loss would be suffered. For the avoidance of doubt, nothing in this clause 19.5 applies to or limits the obligations of the Customer in relation to payment of Fees.
The Customer must indemnify and keep Pointer indemnified against any Loss which arises directly or indirectly out of:
(a) any breach of this Agreement by the Customer including any breach in respect of which Pointer exercises a right to terminate;
(b) the Customer, its Authorised Users or any other person in any way accessing or using the Pointer Service;
(c) any Unacceptable Content being uploaded into the Pointer Application or stored on the Pointer Systems;
(d) any failure by the Customer to obtain any consent, authorisation, permit or approval required for Pointer to provide the Subscription Services, including rights to use the Pointer Service,Data and other Customer Content;
(e) the uploading of the Data and other Customer Content into the Pointer Application, storage of any Data and other Customer Content on the Pointer Systems or use of the Pointer Service by theCustomer or its Authorised Users which does not comply with privacy or other laws of any applicable jurisdiction;
(f) the Data and other CustomerContent being stored or displayed on the Pointer Application;
(g) the Customer infringing theIntellectual Property of a third party (including any Authorised User); or
(h) any negligent or unlawful acts of the Customer or any of its related parties or their respective AuthorisedUsers, employees, officers, contractors or representatives, except to the extent the relevant Loss arises as a direct result of any breach of thisAgreement by Pointer or any negligent or unlawful act of Pointer or any of its personnel.
Words and expressions used in this clause 21which are not defined in this Agreement, but which are defined in the A New TaxSystem (Goods and Services Tax) Act 1999 (Cth) (GST Act), have the meaning given to them in the GST Act.
The consideration for any supply made under orin connection with this Agreement does not include an amount for GST, unless it is expressly stated in this Agreement to be inclusive of GST.
If GST is or becomes payable on any supply made under or in connection with this Agreement (not being a supply for which the consideration is expressly stated in this Agreement to be inclusive ofGST), the party required to provide the consideration for the supply must pay, in addition to and at the same time as the consideration is provided, an amount equal to the amount of GST on the supply.
If the amount for GST recovered by a party under this clause 21 differs from the amount of GST payable by the party or its representative member on the supply, the amount of the difference must be paid to or refunded by the party (as the case requires).
If a party is required under this Agreement to reimburse or indemnify another party for any amount incurred by the other party, the amount to be reimbursed or paid by the party will be the amount incurred reduced by an amount equal to any input tax credit that the other party or its representative member is entitled to claim for the amount incurred and increased by the amount of any GST payable in respect of the reimbursement or payment.
This Agreement will be construed and interpreted in accordance with the laws of the state of Victoria, Australia and each party submits to the exclusive jurisdiction of courts of that jurisdiction.
The Customer may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Pointer. Pointer may assign, novate or otherwise deal with its rights under this Agreement at any time effective immediately upon Pointer notifying the Customer of the assignment or novation.
This Agreement constitutes the entireAgreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
This agreement does not create a relationship of employment, agency, partnership or joint venture between the parties.
(a) If a party is prevented, hindered or delayed from performing its obligations under this Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly.
(b) If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
(c) This clause 22.5 does not apply to any obligation of the Customer to pay the Fees or other amounts payable toPointer under this Agreement.
No failure to exercise or delay in exercising any right given by or under this Agreement to a party constitutes a waiver and the party may still exercise that right in the future.
(a) Pointer may vary this Agreement by providing written notice to the Customer of the variation and such variation shall become effective from the date upon which the Customer agrees to the variation.
(b) The Customer acknowledges and agrees that:
(i) until the Customer confirms that it agrees to the variation, Pointer may suspend the provision of SubscriptionServices to the Customer and/or may suspend the Customer's access to thePointer Service; and
(ii) if the Customer does not agree to a variation, it can terminate this Agreement by providing notice under clause 2or 14.1.
If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting thevalidity or enforceability of that provision in any other jurisdiction.
