Terms & Conditions
Effective Date: 26 September 2022
Term
1.1. Commencement Date and Initial Term
This agreement starts on the Commencement Date and will continue for an Initial Term as set out in an Order Form. Where there is no Order Form in place the Initial Term is 1 month.
1.2. Renewal Term
(a) Subject to clause 1.2(b), at least twenty (20) days prior to the expiry of the Initial Term, you must notify Opvia in writing that you wish to extend this agreement in which case this agreement will automatically extend on the same Terms and Conditions and for the same period of time as the then-current term unless Opvia agrees otherwise in writing (save for the Fees, which will be subject to clause 8.2 and 8.3).
(b) If you provide Opvia your credit card details and authorisation to automatically debit your credit card account for all applicable Fees in accordance with clause 8.1(b) then this agreement will automatically renew for successive periods of time, which periods of time will be equal to the then-current term, on the same Terms and Conditions (save for the Fees, which will be subject to clause 8.2 and 8.3), unless:
i) either party notifies the other party not less than fourteen (14) days before the end of the then-current term; or
ii) this agreement is otherwise terminated in accordance with its terms,
(the Renewal Term).Services
(a) In consideration of the payment by you of the Fees, Opvia will provide the Services to you.
(b) You acknowledge that you have independently determined that the Services to be supplied by Opvia will meet your and your Authorised Users’ requirements.
(c) Subject to the provisions of this agreement, Opvia grants to you a non-exclusive, non-transferable, revocable right to access and use the features and functions of the SaaS Services during the Term (and, for Authorised Users to do the same).
Your obligations
3.1. Compliance
You may only use the Services in accordance with the terms of this agreement and otherwise in compliance with all applicable laws. You agree that you are solely responsible for complying with your obligations under applicable laws, including notifying and obtaining the consent of third parties (where applicable), in relation to the use of the Services, and the use, transfer and disclosure of Your Data as contemplated by this agreement.
3.2. Reliance on information
You must, and must procure that Authorised Users, will provide Opvia with accurate, correct and complete information to enable Opvia to perform the Services and otherwise undertake its obligations under this agreement. Opvia is entitled to rely on such information and has no liability to you or your Authorised Users arising out of or in connection with:
(a) any information you or your Authorised Users provide which is inaccurate, misleading, false, incomplete or similar; or(b) any failure to provide information to enable Opvia to perform the Services and otherwise undertake its obligations under this agreement.
3.3. Authorised Users
All Authorised Users must be employees of your company, external consultants or third party providers who use the Services exclusively on your behalf. You must procure that Authorised Users are aware of and comply with the terms of this agreement. You will be liable for the acts and omissions of Authorised Users as if such acts and omissions of Authorised Users were your acts and omissions.
3.4. Data back up
(a) You are responsible for keeping and maintaining backups of Your Data.
(b) You are responsible for taking steps to not expose your computer and other devices to viruses, works and other malicious code when using the Services, including by installing and using up-to-date anti-virus, anti-spyware and firewall software on your computer.
3.5. Restrictions on the use of the Services
You must not and must ensure Authorised Users do not (and, do not indirectly assist or permit others to do any of these things):
(a) use the Services unlawfully, fraudulently or maliciously;
(b) transmit or process by the Services any material that is defamatory, offensive or otherwise objectionable;
(c) use the Services in a way that infringes the Intellectual Property Rights of any entity or person;
(d) try to access or reproduce the functionality of, or source code of, the Services;
(e) licence, sub-licence, reproduce, modify, reverse engineer, create derivative works of, sell, exploit, rent, lease, duplicate, copy, transfer, assign, distribute, disclose or otherwise exploit the Services; nor to use any data mining, robots or similar data gathering and extraction tools;
(f) use the Services in any way that could damage, disable, overburden, impair or compromise Opvia’s systems or interfaces with other users;
(g) allow the Services to be used through any outsourced service provision, timesharing, managed service or similar kind of arrangement without the prior written consent of Opvia. For clarity, you must ensure each Authorised User only accesses the Services with their own login details and sharing multiple logins across Authorised Users is prohibited;
(h) access all or any part of the Services in order to build a product or service that competes with the Services;
(i) alter or remove any copyright, trade mark or other protective notice in the software used to provide the Services or in any copy of or any component of either of them; and
(j) modify, attack, disrupt or circumvent any software, technology or other material used by Opvia to provide or control access to the Services.
3.6. Access to facilities
You must acquire, maintain and properly use any Access Facility and are solely responsible for all costs of any Access Facility.
Opvia’s Obligations
4.1. Provision of the Services
Opvia will, during the Term, use its reasonable endeavours to provide the Services to you and Authorised Users in accordance with the requirements set out in the Order Form and using due care and skill. Access to the Services will be provided by the method specified by Opvia from time to time.
4.2. Availability of SaaS Services
Opvia will use commercially reasonable endeavours to make the SaaS Services available 24 hours a day, seven days a week, except for planned maintenance carried out during Opvia’s maintenance window, unscheduled maintenance that Opvia determines is required urgently or for circumstances beyond Opvia’s control.
4.3. Changes to the Services
You acknowledge and agree that Opvia may make changes to the Services from time to time, including by changing, adding and removing functions of the Services, and such changes may be temporary or permanent.
Confidentiality
(a) Except to the extent permitted or required by this agreement, each party must not use or disclose any of the other party's Confidential Information.
(b) Opvia may use your Confidential Information for the purpose of performing its obligations to you under, or as otherwise permitted by, this agreement.
(c) Each party may also disclose Confidential Information when required to do so by law or any regulatory authority, and to its representatives whose duties reasonably require such disclosure, provided the disclosure is made on a confidential basis to the extent possible.
Intellectual Property Rights
6.1. Services
(a) Each party will retain its Pre-existing Intellectual Property Rights and nothing in this agreement assigns or transfers the Pre-existing Intellectual Property Rights of one party to the other. For the avoidance of doubt, Opvia retains all rights, title and interest in and to the SaaS Services and Service Material.
(b) Opvia grants you a personal, non-transferable, non-sublicensable and non-exclusive licence for the Term to use the Service Material.
(c) Opvia reserves all rights not otherwise expressly granted.
(d) Opvia confirms that it has the rights and permissions required to grant to you the rights and licences under this agreement.
6.2. Your Data
(a) Your Data remains your property.
(b) You grant Opvia a non-exclusive, worldwide, royalty-free and irrevocable licence and right to collect, use, copy, store, transmit, modify and create derivative works of Your Data for the purpose of providing the Services to you, and, as required for benchmarking, analysis and the enhancement of the Services.
(c) Notwithstanding the foregoing, nothing in this agreement restricts Opvia from disclosing Your Data if Opvia is legally required or compelled to do so by a court, a government authority or some other body with the legal authority to compel disclosure.
6.3. Your Feedback
Opvia may use, exploit, reproduce and disclose that Your Feedback (including Intellectual Property Rights or other proprietary rights which may exist in Your Feedback) in any way whatsoever, without any restriction or any obligation to you, and without any obligation to pay you any royalty, fee or other amount. If you chose to give Opvia Your Feedback, it will not be Your Data or your Confidential Information for the purposes of this agreement.
6.4. Statistical information / benchmarking
Opvia may compile statistical, usage and performance information related to the provision of the Services. Opvia may use that information and material to improve its Services, as reasonably required for benchmarking and analysis, to create new products and services, and for marketing purposes.
Third Party Service Providers
(a) Opvia uses third parties to host the software and to transmit and store data (including Your Data) used to provide the Services. Although Opvia uses protective security measures in relation to the Services, Opvia makes no representations or warranty that these measures will be effective at all times.
(b) You acknowledge and agree that Opvia has no obligation to retain Your Data following the end of Term and that Your Data may be irretrievably deleted by Opvia any time after sixty (60) days following the expiry or termination of this agreement or your use of the SaaS Services (whichever is the earliest to occur).
Fees
8.1. Fees
(a) In consideration of the provision of the Services, you must pay the Fees to Opvia in accordance with the Order Form prior to the Commencement Date (for first time customers) or in advance of any Renewal Term (for existing customers).
(b) If as part of the on-boarding process, Opvia request you provide credit card details to Opvia and you do so, once your credit card details have been verified, you give Opvia authorisation to automatically debit your account for all applicable Fees prior to the Commencement Date (for first time customers) or in advance of any Renewal Term (for existing customers).
8.2. Changes to Fees
(a) Opvia may increase the Fees:
(i) on thirty (30) days’ prior written notice if Opvia’s third party suppliers increase their charges;
(ii) during the next Renewal Term, if Opvia’s then-current rate card changes and Opvia advises you of such changes at least twenty (20) days prior to the commencement of any such Renewal Term.(b) If you do not accept such increased Fees under clause 8.2(a) your sole and exclusive remedy is to cancel the Service (in whole or, where practicable, in part) without penalty and, in the case of increases under clause 8.2(a)(i), request a refund for any pre-paid Fees that have not been incurred.
8.3. Transaction Usage Limits
(a) The Fees are based on a certain volume of transactions being performed through the SaaS Services as set out in section 4 of the Order Form or, if you have no Order Form on the website under the plan you have selected.
(b) If the volume of transactions performed through the SaaS Services exceeds the amount allowed, Opvia may:
(i) increase the Fees to reflect such increased volume of transactions by requiring you to pay for a higher tier of pricing; or
(ii) request in writing that you immediately, and at least within 2 days of such request, reduce the volume of transactions performed through the SaaS Services otherwise Opvia may increase your Fees in accordance with clause 8.3(b)(i).8.4. Taxes
Should you be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under this agreement, the sum payable will be increased by the amount of such tax to ensure that Opvia receives a sum equal to amount to be paid under this agreement.
8.5. Late Payment
(a) Without prejudice to Opvia’s other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, Opvia reserves the right, in its sole discretion, to:
(i) suspend the provision of the Services to you;
(ii) terminate the Services where such amounts remain unpaid for a period of thirty (30) days; and/or
(iii) charge you interest at the maximum amount allowed by law for overdue fees.8.6. Not set off
All amounts payable under this agreement must be paid in full without set-off, deduction or other withholding of any amount.
GST
(a) In this clause 9, the expressions consideration, GST, input tax credit, recipient, supplier, supply, and tax invoice have the same meaning given by the GST Law.
(b) Unless expressly stated otherwise, all amounts set out in this agreement are exclusive of GST.
(c) If GST is payable on any supply made under this agreement by a party to another party the recipient must, subject to the next paragraph, pay to the supplier, in addition to and at the same time as the consideration is payable or to be provided for the supply, an additional amount calculated by multiplying the value of that consideration by the prevailing GST rate.
(d) The supplier must issue a valid tax invoice to the recipient before any payment for a supply made by the supplier under the agreement is due.
(e) Any reference to a cost or expense in this agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party is entitled to an input tax credit.Suspension, Cancellation and Termination
10.1. General
(a) Opvia may suspend in whole or in part whether for a specified period or indefinitely your access to the Services if Opvia reasonably believes that such suspension is required:
(i) to preserve data and integrity;
(ii) as a result of a security breach; or
(iii) as a result of a malfunction in the Services.(b) Opvia may:
(i) suspend in whole or in part whether for a specified period or indefinitely your access to the Services; or
(ii) terminate the Services to you indefinitely,
if Opvia reasonably believes that:
(iii) the Services are used, or appear to Opvia to be intended to be used, by you in a manner deemed inappropriate or excessive use by Opvia; or
(iv) the provision of the Services is likely to expose us to any liability as a result of a breach of any law or any third party rights.10.2. Termination for material breach
(a) Without limiting any other rights which a party may have at law, a party may immediately terminate this agreement by written notice to the other party if the other party:
(i) materially breaches this agreement and fails to remedy such breach within 30 days after receipt of notice from the first party specifying the breach and requiring it to be remedied;
(ii) materially breaches a term of this agreement and/or Order Form (including clauses 3, 5, 6, and 8) and the breach is incapable of remedy; or
(iii) is subject to an Insolvency Event.(b) Opvia may also immediately terminate this agreement by written notice to you if you infringe Opvia's Intellectual Property Rights.
10.3. Cease use
(a) Upon termination or expiration of the Term for any reason, you must cease all use of the Services.
(b) Within 30 days after termination or expiration of the Term, you must, at Opvia's election, either destroy or return to Opvia all copies of the Service Materials, and Opvia's Confidential Information then in your possession, custody and control.
(c) To the maximum extent permitted by law, any suspension pursuant to this clause 10 will not entitle you to any refund, credit or other termination unless otherwise required by law.
Indemnities
11.1. Opvia Indemnity
(a) Opvia will defend you against any claims made by an unaffiliated third party in Australia that any Services or Service Material made available by Opvia infringes that party’s patent, copyright or trademark or makes unlawful use of its trade secret (IP Claim). Opvia will also pay the amount of any resulting adverse final judgement (or settlement to which Opvia consents).
(b) If any IP Claim is bought against you, you must:
(i) notify Opvia as soon as practicable of the IP Claim;
(ii) give Opvia the option to conduct the defence of the IP Claim, including negotiations and settlement;
(iii) provide Opvia with reasonable assistance in conducting the defence of the IP Claim;
(iv) not make any admissions in relation to the IP Claim without Opvia’s prior written consent;
(v) permit Opvia to modify or replace the Services to make them non-infringing;
(vi) permit Opvia to obtain for you the right to continue using the Services; and
(vii) use its best endeavours to mitigate any damages you suffer as a result of a IP Claim.(c) Opvia’s obligations under clause 11.1(a) will not apply to the extent that the IP Claim or judgement or settlement is based on:
(i) modifications to the Services made by anyone other than Opvia;
(ii) use of the Services in combination with other software, hardware or materials not provided by Opvia; or
(iii) use of the Services for a purpose other than that for which it was supplied.(d) If any IP Claim is bought against you, and Opvia is unable to:
(i) modify or replace the Services to make it non-infringing; or
(ii) obtain for you the right to continue using the Services,
on terms that Opvia believes to be commercially reasonable, Opvia may terminate this agreement with immediate effect by giving you thirty (30) days written notice of such termination.(e) To the maximum extent permitted by law, this clause 11.1 sets out the sole and exclusive obligations of the parties, and the sole and exclusive remedies of the parties, in relation to any IP Claim and any other actual or alleged infringement of Intellectual Property Rights of third parties by the Services.
11.2. Your Data Indemnity
(a) You indemnify Opvia and their employees, officers, agents and contractors (Those Indemnified) from and against all losses, damages, liability, costs and expenses (including legal expenses) of any nature or kind which Those Indemnified suffer or incur in connection with:
(i) Your Data, including any claim brought by a third party, or contravenes any law; or
(ii) made by any Authorised User against Opvia or any of its offers, directors, employees or contractors in connection with the Services.Liability
(a) To the maximum extent permitted by law, the liability of Opvia under this agreement will:
(i) be limited in the aggregate to Fees paid by you to Opvia in the one month immediately preceding the act, omission or occurrence giving rise to such liability; and
(ii) not include any consequential loses or damages.(b) The limitations and exclusions of liability set out in this clause 12:
(i) do not apply for the indemnity provided under clause 11.1, personal injury, death or any claims that cannot be excluded at all;
(ii) apply regardless of the basis on which such liability arises, whether in contract, breach of statutory duty, tort (including negligence), in equity or under statute.(c) Opvia’s liability to you under or in relation to this agreement or its subject matter is reduced to the extent that your acts or omissions, or those of a third party (other than an Opvia licensors or subcontractors), contribute to or cause any such liability.
General
(a) Disputes. All disputes arising out of this agreement must be referred within fourteen (14) days of the dispute to a senior executive appointed by both parties, who must meet with a view to resolving the dispute. If the dispute is not resolved within seven (7) days of that meeting then either party may commence court proceedings in relation to the dispute. Either party may commence court proceedings relating to any dispute arising from the agreement at any time where the party seeks urgent interlocutory relief.
(b) Force Majeure. Neither party will be responsible for failure or delay of performance of any obligation if caused by (i) an act of war, terror, hostility or sabotage; (ii) an act of God, flood, fire or earthquake, (iii) electrical, internet, or telecommunication outage or any other problem that is not caused by the obligated party, (iv) government restrictions (including the denial or cancellation of any licence), or any other event outside the reasonable control of the party with that obligation (Force Majeure Events). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event.
(c) Notices. Any notice or other communication that is required or permitted to be given under this agreement will be given in writing and may be delivered by hand or sent by mail to the applicable address specified in the Order Form or as otherwise advised from time to time.
(d) Severability. If any provision of this agreement will deemed invalid, illegal, void or for any reason unenforceable, that provision will be deemed to be severable and will not affect the validity or enforceability of any other provision.
(e) Independent contractors. The parties are independent contractors and this agreement does not create a relationship of employment, agency, joint venture or partnership between the parties.
(f) Subcontracting. Opvia may subcontract the performance of any part or the whole part of any Services provided under this agreement, and Opvia will remain responsible to you for the delivery of those Services.
(g) Assignment. You may not assign, novate, transfer or otherwise deal with this agreement or any rights under it without the prior written consent of Opvia. Opvia may assign, novate, transfer or otherwise deal with this agreement or any rights under it without your prior written consent provided that the incoming assignee agrees to be bound by the terms of this agreement.
(h) Amendment must be in writing. An amendment to this agreement is only effective if agreed in writing by the parties.
(i) No waiver. No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this agreement does not prevent a further exercise of that or of any other right or remedy.
(j) Governing law. This agreement is governed by the laws of Queensland, Australia. The parties submit to the jurisdiction of the courts of Queensland and the Commonwealth of Australia.
(k) Counterparts. The agreement may be executed in any number of counterparts, each of which, when executed, is an original. Those counterparts together make one instrument.
(l) Miscellaneous interpretation: In this agreement, unless the contrary intention appears (documents) a document includes all amendments or supplements to, or replacements of, that document; (laws) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements; (person) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (singular, plural and gender) the singular includes the plural and vice versa, and a gender includes other genders; (headings) headings are for ease of reference only and do not affect interpretation; (executors, administrators, successors) a reference to a party is either you or Opvia (or both), and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; (grammar) another grammatical form of a defined word or expression has a corresponding meaning; (meaning not limited) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (thing) unless the contract otherwise requires, a reference to a thing (including a chose in action or other right) includes a part of that thing; (time) a reference to time is a reference to time in Sydney, Australia; (day) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (currency) unless stated otherwise, a reference to dollar or $ is to Australian currency; and (preparation of document) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.
Definitions
Authorised User means a user of the Services authorised by you to use the Services.
Access Facility means telecommunications, networks, systems and other facilities used, or required by, you or on your behalf for accessing and making use of the Services (as applicable).
Commencement Date means the date you commenced using the Service.
Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential. Confidential information does not include information or material which:
(a) is or becomes generally known to the public other than through a breach of this agreement;
(b) at the time it was first disclosed to a party, was already in that party's lawful possession;
(c) is developed independently by a party; or
(d) is disclosed to a party by a third party entitled to disclose it.
Fees means the fees payable to Opvia.
Force Majeure Event has the meaning given in clause 13(c).
GST Law has the same meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.
Initial Term has the meaning given to that term in clause 1.1.
Insolvency Event means in relation to a party, where that party becomes subject to any form of insolvency administration, ceases to carry on business, ceases to be able to pay its debts as they become due, where there is any step to enter into any arrangement between that party and its creditors, or to appoint a receiver or similar.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
Order Form means the document titled as such under which you order Services.
Pre-existing Intellectual Property Rights means a person's Intellectual Property Rights existing prior to the commencement of the Services or otherwise brought into existence other than in the course of performing this agreement, and any improvements, enhancements, modifications or developments thereof.
Renewal Term has the meaning given to that term in clause 1.2.
SaaS Services means the services described as "SaaS Services" in the Order Form.
Services means the SaaS Services and any Service Materials provided in connection therewith.
Service Materials means all materials (including software, documentation, deliverables, modifications, enhancements and derivative works) that are created by, or on behalf of, Opvia in connection with any Services or other products or services that Opvia provides to you.
Term means the Initial Term and any Renewal Term.
Your Data means any material or information that is uploaded by you in the course of your use of the SaaS Services or
otherwise provided to Opvia in connection with your use of the Services.
Your Feedback means any suggestions, questions, requests, comments, ideas or similar that you provide to Opvia in relation to the Services.