Software as a Service Agreement
1 Your acceptance
(a) This Agreement is between you (Customer or you) and oneVR Pty Ltd ACN 606 058 226 (Supplier, we or us) and governs your initial purchase of the Services, as well as any future purchases or renewals made by reference to this Agreement.
(b) By creating an Account or purchasing, using or accessing the Services, you agree to be bound by this Agreement.
This Agreement will come into force on the Commencement Date and will continue in force for the Term and any subsequent Renewal Term (if applicable), unless terminated in accordance with clause 10.
(a) In consideration for the timely payment of the Fees, the Supplier will supply the Services to the Customer.
(b) The Supplier will use reasonable endeavours to:
(i) ensure that any Customer Content is made available to End-Users via the Application; and
(ii) maintain the availability of the Platform and the Application, but the Supplier does not guarantee that the Platform or Application will always be available.
4 End-User Information
(a) From time to time the Supplier may collect and store End-User Information.
(b) The Supplier agrees to provide End-User Information to the Customer and grants the Customer a limited, non-transferable, non-sublicensable, non-exclusive licence to use such End-User information for the Customer’s own legitimate commercial purposes. The parties acknowledge that such information is owned by the Supplier.
(c) Notwithstanding clause 4(b) the Supplier:
(i) is not obliged to provide End-User Information to the Customer where to do so could breach any Law or infringe the rights of a third party; and
(ii) reserves the right to, in its sole discretion, create material derived from End-User Information (such as analysed statistics and trends) which may be made available to the Customer or third parties for a fee.
(a) The Supplier grants to the Customer a limited, non-transferable, non-sublicensable, non-exclusive licence to access and use the Platform by means of a Supported Browser (Licence) solely for the purpose of transmitting the Customer Content to the Platform so that the Supplier can supply the Services (Purpose).
(b) The Licence is subject to the following conditions:
(i) the Customer must only access and use the Platform for the Purpose;
(ii) the Customer will not sub-license its right to access and use the Platform;
(iii) the Customer will not permit any person who is not an officer, director, employee, agent, contractor or subcontractor of the Customer to access or use the Platform; and
(iv) the Customer will not use the Platform to provide services to third parties.
6 Customer obligations
(a) The Customer will not, and the Customer will ensure that any person who uses or accesses the Platform with the authority of the Customer or through an Account does not, use the Account or Platform:
(i) in any way that infringes any Law or the Intellectual Property Rights or other legal rights of any person;
(ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
(iii) in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform.
(b) The Customer will use reasonable endeavours, including implementing reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Platform.
7 Customer Content
(b) The Customer hereby grants to the Supplier a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit, translate and to otherwise do all things necessary to the Customer Content to the extent reasonably required for the Supplier to provide the Services, together with the right to sub license these rights to the Supplier’s service providers.
(a) the event that the Supplier receives notice or becomes aware that any Customer Content does or may:
(i) infringe the Intellectual Property Rights of a third party; or
(ii) breach any Law,
the Supplier may, without notice, do any or all of the following:
(i) suspend the Customer’s access to the Platform;
(ii) immediately remove all Customer Content from the Platform;
(iii) cease to make Customer Content available via the Application; and
(iv) commence an investigation into the alleged infringement,
all without liability to the Customer or breach of this Agreement on the part of the Supplier.
(b) The Supplier will only be required to recommence provision of the Services following any action taken in accordance with clause 7(b), when the Supplier is satisfied (acting reasonably) that the Customer Content does not infringe the Intellectual Property Rights of a third party or breach any Law (as applicable).
9 Intellectual Property
(a) Any Intellectual Property Rights arising out of, or connected with, any modification or alteration of the Platform, Application or End-User Information, whether authorised or not, shall vest in the Supplier and this Agreement shall apply to the Platform, Application or End-User Information as modified or altered.
(b) The parties acknowledge and agree that:
(i) all Intellectual Property Rights in the Platform, Application and End-User Information are owned by the Supplier; and
(ii) all Intellectual Property Rights in the Customer Content are owned by the Customer.
(c) The Customer agrees to:
(i) do all things necessary, including sign any further documentation, to record or give effect to the Supplier’s ownership of, and Intellectual Property Rights in, the Platform, Application and End-User Information as modified; and
(ii) notify the Supplier immediately if it becomes aware of any unauthorised use or infringement of the Supplier’s Intellectual Property Rights.
10 Fees and Renewal
(a) In consideration for the Supplier providing the Services, the Customer agrees to pay the applicable Fees to the Supplier in accordance with the payment schedule set out in the Customer’s Account information.
(b) The Supplier will provide to the Customer, prior to the due date of any Fees (or portion thereof), a valid tax invoice for the amount of the relevant Fee (or portion thereof).
(c) The applicable Fees (or portion thereof) will be billed, and the Customer authorises the Supplier to charge the relevant amount to the Customer’s Payment Method, in accordance with the payment schedule set out in the Customer’s Account information. In some instances, the timing of billing may change if, for example, the Payment Method has not successfully settled. The Customer can change its Payment Method through the Customer’s Account.
(d) If the Supplier determines that the Customer has exceeded any of the agreed maximum limits imposed on the Customer’s use of the Platform or Application, including without limitation storage and bandwidth limits, the Supplier reserves the right to invoice the Customer for an amount in addition to the Fees, in accordance with the terms set out in the Customer’s Account, which the Customer must pay by the time stated in the invoice.
10.2 Automatic Renewal
(a) The term of this Agreement will continuously rollover on each Renewal Date for a further period equal to the Term (each such period being a Renewal Term) until terminated in accordance with clause 10.
(b) In these circumstances:
(i) the Customer authorises the Supplier to charge applicable Fees in connection with each Renewal Term to the Customer’s Payment Method; and
(ii) the rights and obligations of the Customer and the Supplier will otherwise be for each Renewal Term as they were for the Term.
10.3 Taxes and duties excluded
The Supplier reserves the right to charge the Customer, and the Customer agrees to pay to the Supplier if requested, the amount of any taxes or duties (including GST) payable in connection with the Services in addition to any Fees payable under this Agreement.
11 Termination and Suspension
11.1 Termination for cause
(a) For the purpose of this Agreement, the following are terminating events:
(i) a failure by the Customer to pay any applicable Fees by the relevant due date in accordance with clause 9;
(ii) the breach by the Customer of any of its material obligations under this Agreement, except for a breach described in clause 10.1(a)(i);
(iii) the breach of any warranty given by the Customer under this Agreement;
(iv) the appointment of any type of insolvency administrator in respect of the property or affairs of either party;
(v) the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors; and
(vi) either party becoming insolvent or otherwise being unable to meet its financial obligations.
(b) This Agreement may be terminated immediately on the happening of the terminating events referred to in clause 10.1(a)(ii) to 10.1(a)(vi) (inclusive) at the election of the affected party.
11.2 Non-payment of Fees
(a) In the case of a terminating event under clause 10.1(a)(i), if the outstanding Fees are not paid by the Customer within 14 calendar days of the due date, the Supplier may:
(i) terminate this Agreement; or
(ii) agree to waive its rights under this clause 10.2 in relation to that particular breach or event.
(b) On and from the day that a terminating event under clause 10.1(a)(i) arises, the Supplier may:
(i) suspend the Customer’s access to the Platform;
(ii) immediately remove any Customer Content from the Platform;
(iii) cease to make the Customer Content available via the Application; and
(iv) cease to provide the Services,
until such time as all outstanding Fees are paid by the Customer and all without any liability whatsoever to the Customer.
11.3 Termination for convenience
(a) Without limiting the way in which this Agreement can be terminated under this clause 10:
(i) the Customer can terminate this Agreement by giving written notice to the Supplier at least 30 calendar days before the applicable Renewal Date, in which case this Agreement will terminate at the end of the Term or Renewal Term (as the case may be); and
(ii) the Supplier can terminate this Agreement at any time by giving the Customer 30 calendar days’ written notice (Notice Period).
(b) If the Customer terminates this Agreement in accordance with clause 10.3(a)(i):
(i) the Customer will continue to pay any Fees payable until the end of the Term or Renewal Term (as the case may be) and will not be entitled to a refund of any Fees paid in advance; and
(ii) subject to the Customer continuing to pay any Fees due under this Agreement, the Customer will continue to have access to the Services through to the end of the Term or Renewal Term (as applicable).
(c) In circumstances where the Supplier has terminated this Agreement in accordance with clause 10.3(a)(ii), the Supplier may elect for this Agreement to continue:
(i) for the remainder of the Term or Renewal Term (as the case may be); or
(ii) until the end of the Notice Period, in which case the Supplier will retain the amount of any Fees paid in advance by the Customer in proportion to the length of the Notice Period, and refund the remainder to the Customer.
11.4 Consequences of termination
In circumstances where this Agreement has been terminated by either party, the Supplier may:
(a) disable and cancel the Customer’s Account;
(b) remove the Customer’s Customer Content from the Platform;
(c) cease to make the Customer Content available via the Application; and
(d) cease to provide the Services.
11.5 Survival of provisions
The following provisions of this Agreement survive termination of this Agreement: 8 (Intellectual Property), 9 (Fees and Renewal), 10 (Termination and Suspension), 11 (Warranties and Indemnities), 13 (Limitation of Liability) and 16 (General). Any termination of this Agreement will not affect any accrued rights or liabilities of either party.
12 Warranties and Indemnities
(a) Each party warrants that it has the legal power and authority to enter into this Agreement and that this Agreement will be legally binding and enforceable against it.
(b) The Customer warrants that it will not:
(i) use the Platform for anything but the Purpose;
(ii) infringe the rights of the Supplier or the rights of any other person or entity, including without limitation, their Intellectual Property Rights, privacy, publicity or contractual right; or
(iii) misuse, disclose or make available to any third party any End-User Information.
(c) The Customer warrants to the Supplier that the Customer Content:
(i) does not infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy;
(ii) does not infringe, violate, or encourage any conduct that would infringe or violate, any Law or would give rise to criminal or civil liability;
(iii) is either owned by the Customer or the Customer has the legal right to transmit the Customer Content to the Platform and grant the licence to the Supplier in accordance with clause 7(a);
(iv) is not fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
(v) is not defamatory, obscene, pornographic, vulgar or offensive;
(vi) does not promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(vii) is not violent or threatening or will promote violence or actions that are threatening to any other person; and
(viii) does not promote illegal or harmful activities or substances.
(d) The Customer warrants to the Supplier that the use of the Customer Content by the Supplier in accordance with this Agreement will not:
(i) breach the provisions of any Law;
(ii) infringe the Intellectual Property Rights or other legal rights of any person; or
(iii) give rise to any cause of action against the Supplier,
in each case in any jurisdiction and under any applicable Law.
(e) The Customer represents and warrants to the Supplier that each warranty contained in this clause 11 is correct and not misleading on each date between (and including) the Commencement Date and termination of this Agreement (as if made on each such day).
(a) The Customer will indemnify and hold harmless the Indemnified Parties against:
(i) any and all Loss arising directly or indirectly:
(A) from the Customer using or accessing the Platform;
(B) from a third party’s use or reliance on any Customer Content contained on, in or accessed through the Platform or Application;
(C) from the Customer misusing any End-User Information;
(D) from breach by the Customer of this Agreement;
(E) from the Customer breaching any Law or rights of a third party;
(F) from the breach of any warranty given by the Customer under this Agreement;
(G) from a Security Breach; and
(ii) any and all Loss arising out of or in connection with any claim:
(A) made against an Indemnified Party by a third party alleging that any Customer Content infringes a Law or the Intellectual Property Rights of that third party; and
(B) brought against an Indemnified Party by any third party relating to the Customer’s use of the Platform.
(b) Each indemnity in this Agreement is a continuing obligation, separate and independent from the Customer’s other obligations and survives the termination of this Agreement.
(c) It is not necessary for the Supplier to incur expense or make a payment before enforcing any indemnity conferred by this Agreement.
(a) The Customer acknowledges that complex software is never wholly free from defects, errors and bugs and the Supplier gives no warranty or representation that the Platform or Application will be wholly free from defects, errors and bugs.
(b) The Customer acknowledges that complex software is never entirely free from security vulnerabilities and the Supplier gives no warranty or representation that the Platform or Application will be entirely secure.
(c) The Supplier can, at any time and without prior notice, remove or disable access to any Customer Content and/or the Customer’s access to the Platform for any reason, including Customer Content that the Supplier, in its sole discretion, considers to be objectionable for any reason, in violation of the terms contained in this Agreement, or otherwise harmful to the Supplier, Application or the Platform.
14 Limitation of Liability
(a) To the maximum extent permitted by law, the Supplier shall not be liable to the Customer in respect of any:
(i) loss, damage, corruption or degradation of any Customer Content or other data or material as a result of the use of the Platform or Application and/or viruses or other technologically harmful material that may infect a Device due to the Customer’s use of the Platform or Application;
(ii) Loss arising out of or in connection with:
(A) the Services;
(B) the Customer’s use of the Platform or Application;
(C) the Supplier providing the Customer with false or misleading End-User Information (including if such information was provided negligently); or
(D) a Security Breach.
(b) The liability of the Supplier in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of the Supplier in connection with its obligations under this Agreement will not exceed the total of all Fees paid by the Customer, even if the Supplier has been advised by the Customer as to the possibility of such losses being incurred.
(c) Where legislation implies in this Agreement any guarantee, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such guarantee, condition or warranty, the guarantee, condition or warranty will be deemed to be included in this Agreement. However, the liability of the Supplier for any breach of such guarantee, condition or warranty will be limited, at the option of Supplier, to one or more of the following:
(i) if the breach relates to goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of such goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(ii) if the breach relates to services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(a) The Supplier reserves the right, at its sole discretion, to modify the Platform or Application, or to modify this Agreement, including any Fees, at any time and without prior notice.
(b) If the Supplier modifies the terms of this Agreement, it will provide the Customer with notice of the modification.
(c) Save as expressly provided for by clause 9.1(d), any modification of this Agreement, including in relation to any Fees, will take place on the calendar day immediately following the next Renewal Date and by continuing to access or use the Platform after this date, the Customer indicates that it agrees to be bound by the modified terms of this Agreement.
(d) If the modified terms of this Agreement are not acceptable to the Customer, the Customer’s only recourse is to cease using the Platform.
(b) You acknowledge that Customer Content and information about you, including information provided to us in your Account, will be held by the Supplier or by our service providers, who may be located outside of Australia.
(a) Subject to subclause 16.1(b), the parties must keep:
(i) the other party’s Confidential Information; and
(ii) the terms of this Agreement,
confidential, and must not make or approve any communication about it without the prior written approval of the other party.
(b) A party may make disclosures in relation to this Agreement to:
(i) its employees, agents, subcontractors, professional advisers and bankers if those persons undertake to keep confidential any information so disclosed; or
(ii) comply with any applicable law or stock exchange if it first provides the other party with a reasonable opportunity to comment on the form and content of the proposed disclosure.
The Customer will not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations under this Agreement, without the prior written consent of the Supplier, which must not be unreasonably withheld.
17.3 Governing law and jurisdiction
(a) This document is governed by and is to be construed in accordance with the laws applicable in Western Australia.
(b) Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts exercising jurisdiction in Western Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
(c) No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
(d) Should any part of this Agreement be or become invalid, that part will be severed from this Agreement. Such invalidity will not affect the validity of the remaining provisions of this Agreement.
17.4 Dispute resolution
(a) Prior to commencement of legal proceedings:
(i) any dispute or difference arising in connection with this Agreement will be first submitted to a senior executive of the Supplier and the Customer for resolution; and
(ii) if such executives are unable to resolve a dispute within 20 calendar days of the dispute being referred to them, the dispute or difference must be submitted to mediation in accordance with, and subject to, the Rules for Mediation of Commercial Disputes of the Institute of Arbitrators and Mediators, Australia. During such mediation, both parties may be represented by a duly qualified legal practitioner.
(b) Nothing in this Agreement prevents either party from bringing urgent interlocutory relief for any breach of confidentiality or infringement of the Intellectual Property Rights.
(a) Unless expressed to the contrary, in this document:
(i) words in the singular include the plural and vice versa;
(ii) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(iii) ‘includes’ means includes without limitation;
(iv) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; and
(v) a reference to:
(A) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
(B) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation; and
(C) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced.
(b) Headings do not affect the interpretation of this document.
In this document these terms have the following meanings:
Account The account enabling the Customer to access and use the Platform.
Agreement This agreement as amended from time to time, including any annexures and schedules.
Application The Supplier’s mobile application, known as “Virtualiis”.
Commencement Date The day on which the Customer creates an Account, or first purchases, uses or accesses the Services.
Confidential Information Information that is by its nature confidential.
Corporations Act Corporations Act 2001 (Cth).
Customer Content All content transmitted by the Customer for storage on the Platform.
Device Any mobile device, tablet, computer or other device with which the Customer accesses the Platform and/or Application.
End-User A person who accesses the Application.
End-User Information Any information collected by the Supplier regarding an End-User or the End User’s use of the Application, including, but not limited to, the End User’s:
(b) date of birth;
(e) telephone number; and
(f) email address.
Fees Has the meaning given in clause 1(c).
GST Has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnified Party Each of the Supplier, its related bodies corporate (as that term is defined in the Corporations Act), directors, officers, employees, agents, contractors and representatives.
Intellectual Property Rights Includes all right, title and interest wherever subsisting (now or in the future) throughout the world and whether registered or not, in and to:
(a) copyright, neighbouring rights, Moral Rights and the protection of databases, circuit layouts, topographies and designs;
(b) methods, inventions, patents, utility models, trade secrets, confidential information, technical and product information; and
(c) trade marks, business and company domain names and get ups,
and includes the right to apply for the registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other right generally falling within this term.
Law Includes any law or legal requirement, including at common law, in equity, under any statute, regulation or by-law and any authorisation, decision, directive, guidance or guideline of a government agency.
Licence Has the meaning given in clause 5.
Loss Any loss (including, but not limited to direct, indirect, special, consequential or exemplary damages, loss of profit or revenue, loss of expected profit or revenue, and loss as a result of business interruption or corruption of data), claim, action, liability, damage, cost, charge, expense, outgoing, payment, diminution in value or deficiency of any kind or character which a party pays, suffers or incurs or is liable for, including:
(a) interest and other amounts payable to third parties; and
(b) legal (on a full indemnity basis) and other expenses incurred in connection with investigating or defending any claim or action, whether or not resulting in any liability, and all amounts paid in settlement of any claim or action.
Moral Right Has the meaning given in the Copyright Act 1968 (Cth).
Notice Period Has the meaning given in clause 10.3(a)(ii).
Payment Method The Customer’s method of paying for the Services as nominated by the Customer from time to time and set out in the Customer’s Account.
Platform The platform managed by the Supplier and used to host the Customer Content.
Purpose Has the meaning given in clause 5.
Related Party Each of Virtualiis Pty Ltd ACN 158 966 208, a related body corporate (as that term is defined in the Corporations Act), director, officer, employee, agent, contractor and representative of the Supplier.
Renewal Date The last day of the Term or Renewal Term (as applicable).
Renewal Term Has the meaning given in clause 9.2.
Security Breach Any act or omission that compromises the security, confidentiality or integrity of the Customer’s Confidential Information or Customer Content.
Services The services to be provided by the Supplier to the Customer under this Agreement, being solely to:
(a) host the Customer Content on the Platform;
(b) make the Customer Content available to End-Users; and
(c) communicate the Customer Content to End-Users via the Application.
Supported Browser The current release, from time to time, of [Corrs Note: Please insert appropriate web browser(s) that can be used to access/upload content to the Platform], or any other web browser that the Supplier states in writing will be supported.
Term The term of this Agreement, as nominated by the Customer in its Account on the Commencement Date.