Software License Agreement Terms and Conditions

 

  1. Definitions

‘Agreement’ means the terms and conditions set out in this document (Agent Power Software License Agreement Terms and Conditions), the Application Form and any other Forms or Agreements executed by You and Us during the Term of this Agreement.

‘Companion Product’ means products and services offered by Us in addition to the Agent Power Software.

‘Confidential Information’ in relation to a party (Disclosing Party) means any information disclosed by the Disclosing Party to the other party (Receiving Party) under this Agreement that:

(a)          is by its nature confidential;

(b)          is designated by the Disclosing Party as confidential; or

(c)          the Receiving Party knows or ought to know is confidential, but does not include information that is:

(d)          in the public domain otherwise than as a result of a breach of this Agreement;

(e)          already known by the Receiving Party independently; or

(f)           independently developed or obtained by the Receiving Party without breach of this Agreement.

‘Content’ means data supplied by Us, contained within the Software, including but not limited to Exclusive Sale/Auction Agreement, Contract of Sale, Section 32 Vendor Statement, any automated forms and online material provided on the Agent Power website, as updated from time to time.

‘Data Transition’ means the conversion of data from your existing property listings to the Software.

‘Date of Installation’ means the date that We install, set up or otherwise provide You with access to the Software.

‘Device’ means the hardware used by You to operate the Software.

‘Direct Debit’ means funds withdrawn from Your nominated bank account by Us in accordance with the Direct Debit Request Service Agreement (DDRSA).

‘Dispute’ means any dispute or disagreement arising out of or relating to this Agreement, including any dispute arising out of or relating to the existence, formation, breach or termination of this Agreement or any claim in tort, in equity or pursuant to any legislation.

‘GST’ means:

(a)          the same as in the GST Law;

(b)          any other goods and services tax, or any tax applying to this agreement in a similar way; and

(c)          any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

‘GST Law’ means the same as ‘GST law’ in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

‘Insolvency Event’ in relation to a party means the occurrence of any of the following:

(a)          a receiver, receiver and manager, liquidator, provisional liquidator, administrator or trustee is appointed in respect of that party or any of its assets;

(b)          an application is made to court or a resolution is passed or an order is made for the winding up or dissolution of that party;

(c)          that party proposes or takes any steps to implement a scheme of arrangement or other compromise or arrangement with its creditors or any class of them; or

(d)          that party is declared or taken under any applicable law to be insolvent or that party's board of directors resolves that it is, or is likely to become at some future time, insolvent.

‘Intellectual Property Rights’ means all industrial and intellectual property rights both in Australia and throughout the world, whether now known or devised in the future, and for the duration of the rights including any patents, copyright, registered or unregistered trademarks or service marks, registered designs and commercial names and designations, circuit layouts, database rights and rights in relation to confidential information and trade secrets, whether or not registered or registrable.

‘Laws’ means (whether in Australia or any other relevant jurisdiction) all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writes, orders, injunctions, judgements, generally accepted Australian accounting principles and industry-wide non- statutory rules in force or as applicable from time to time.

‘Agent Power System Requirements’ means the Agent Power System Requirements published at https://agentpower.com.au/requirements which are subject to change without notice.

‘Privacy Laws’ means the Privacy Act 1988 (Cth) and any other applicable legislation, principles, industry codes, guidelines, codes of conduct or ancillary regulation relating to privacy or the handling of Personal Information by either You or Us.

‘Software’ means the Agent Power Software, any automated forms, mobile apps and other online content.

‘Third Party Intellectual Property Claim’ means a demand, claim, action or proceeding that the Software accessed under this Agreement infringes any Australian patent, copyright or trademark right of any third party.

‘User’ means a person that accesses or otherwise uses the Software for the Term.

‘We, Us and Our’ means Riven Pty Ltd ABN 39 694 185 239 and its associated entities of Level 8, 488 Bourke Street, Melbourne 3000.

‘You and Your’ means the client detailed on the Application Form or otherwise executing this Agreement

  1. Term

This Agreement will commence on the date you execute the Agent Power Application Form and in doing this confirming you have read and agree to this Agreement (Commencement Date) and, subject to termination in accordance with clause 17, will continue indefinitely from the Commencement Date (Term).

  1. Our responsibilities

We will make the following services available to You for the Term of this Agreement (Services):

  1. provide You with access to the Software and Content;
  2. research, development, upgrades, iterative improvements and support for the Software from time to time;
  3. hosting Your Data and documents on Our servers;
  4. invitations and offers to apply to use additional products and services as offered by the Us or other third parties affiliated with Us.
  1. Your responsibilities
    1. You will:
      1. be responsible for Users' compliance with this Agreement;
      2. use reasonable efforts to prevent unauthorised access to or use of the Services;
      3. notify Us promptly if You become aware of any possible or actual unauthorised access or use of the Services;
      4. ensure that You and the Users' use of the Services is in accordance with any applicable Laws;
    2. You will not:
      1. make the Services available to any person other than the Users;
      2. commercialise the Services;
      3. use the Services to store or transmit illegal materials or malicious code.
  2. Users and Additional Users
    1. You agree that unless specified in the applicable Application Form, the Services set out in clause 3 are purchased and access Users will, subject to Your compliance with this Agreement, commence on the Commencement Date and continue for the Term of this Agreement;
    2. You may permit the Users to access and use the Software, subject to You ensuring that each User who accesses or uses the Software complies with the applicable terms, conditions and obligations of this Agreement and that the Services set out in clause 3 are not:
      1. accessed by anyone that is not an employee of You;
      2. transferred from You to any other entity or the access rights to the Services otherwise shared or transferred between different individuals.
    3. In relation to the Services set out in clause 3, You will:
      1. ensure that any logins or passwords that are used by You or the Users to access the Software will be kept in a secure and safe manner;
      2. notify Us immediately in writing if You become aware that there may have been an unauthorised use of the Services or any other security breach relating to Your or a Users' account; and
      3. be solely responsible and liable for the use of the Software by You, any User or any other person who gains access to the Software as a result of You or a Users' failure to use reasonable security precautions.
  3. Consideration & Payment
    1. The agreed consideration for use of the software is $1 per annuum. Other services relating to the transactions occurring within the software will be charged at published rates in a separate agreement with you.
    2. You must pay us, by electronic funds transfer, Direct Debit, credit card or such other method we nominate from time to time.
    3. You agree to notify us as soon as reasonably practicable if any of Your payment details change.
    4. If any amounts are due and payable by Direct Debt but not received by Us by the date such amounts fall due (as specified in the Application Form), then at Our sole discretion, without limiting Our other rights and remedies under this Agreement all Services may be suspended until such amounts are received in full;
    5. If any amounts that are due and payable but not received by Us within thirty (30) days from the date on which such amounts fall due (as specified in the Order Form), then, at Our sole discretion, We may;
      1. terminate this Agreement (and any applicable Order Form) immediately;
      2. hand such amounts to a third party and You will be liable to Us and/or the third party for any associated costs until such time as such amounts are paid in full to such third party.
    6. We will give You tax invoices for amounts You need to pay Us under this clause.
  4. GST and Taxes
    1. Any consideration or amount payable under this Agreement (including any non-monetary consideration) (Consideration) is exclusive of GST. Our fees do not include any taxes, duties or charges imposed or levied in Australia or overseas (collectively, Taxes) in connection with this Agreement and its performance.
    2. If GST is or becomes payable on a Supply made under or in connection with this Agreement, an additional amount (Additional Amount) is payable by the party providing consideration for the Supply (Recipient) equal to the amount of GST payable on that Supply as calculated by the party making the Supply (in this clause only, the Supplier) in accordance with the GST Law.
    3. The Additional Amount payable under clause 7(b) is payable at the same time and in the same manner as the Consideration for the Supply.
    4. If for any reason the amount of GST payable on a Supply varies from the Additional Amount payable by the Recipient under clause 7(b):
      1. the Supplier must provide a refund or credit to the Recipient, or the Recipient must pay a further amount to the Supplier, as appropriate;
      2. the refund, credit or further amount (as the case may be) will be calculated by the Supplier in accordance with the GST Law; and
      3. the Supplier must notify the Recipient of the refund, credit or further amount within 10 Business Days after becoming aware of the variation to the amount of GST payable. Any refund or credit must accompany such notification and the Recipient must pay any further amount within 5 Business Days after receiving such notification, as appropriate. If there is an Adjustment Event in relation to the Supply, the requirement for the Supplier to notify the Recipient will be satisfied by the Supplier issuing to the Recipient an Adjustment Note within 10 Business Days after becoming aware of the occurrence of the Adjustment Event.
    5. Despite any other provision in this Agreement:
      1. if an amount payable under or in connection with this Agreement (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Amount Incurred; and
      2. no Additional Amount is payable under clause 7(b) in respect of a Supply to which s 84-5 of the GST Law applies.
    6. Any reference in this clause 7 to an Input Tax Credit to which a party is entitled includes an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of a GST Group of which the party is a member is entitled.
    7. If We have a legal obligation to pay or collect any Taxes on Your behalf or arising under clause 7(a), You agree that We can Direct Debit such amounts from the bank account details or credit card specified in the Order Form, or notified in writing from You to Us in addition to any amount you owe us at the next occurring Billing Period, unless You provide Us with an authorised tax exemption certificate from the appropriate taxing authority.
  5. Installation
    1. We will schedule a date to install such Software purchased under this Agreement on a date that is reasonably practicable for Us to install such Software (Date of Installation). Installation is conducted at our sole discretion either in person or via remote services.
  6. Intellectual Property Rights
    1. Subject to the terms of this Agreement, We grant You a non-exclusive, non-transferable, revocable, limited licence to access and use the Software for the Term of this Agreement solely for Your internal business purposes.
    2. You acknowledge that We are the sole and exclusive owner of the right, title and interests (including Intellectual Property Rights) in the Services and that Your (and the Users') only right is to access and use the Software in accordance with this Agreement.
    3. You acknowledge that nothing in this Agreement transfers ownership or assigns any Intellectual Property Rights subsisting in the Services to You or the Users.
    4. You must not, and must procure that the Users' do not:
      1. use, operate, copy, distribute, sell, sublicense, rent or modify the Software except as expressly permitted by this Agreement;
      2. disassemble, decompile, or reverse engineer all or any parts of the Software, except to the extent, and in relation to the scenarios in respect of which, such restriction is prohibited under the Copyright Act 1968 (Cth);
      3. use the Software in a manner that may damage Our reputation or Our goodwill;
      4. post or transmit any material that is unlawful, threatening, abusive, libellous, defamatory, obscene, vulgar, profane or indecent of any kind via the Software;
      5. introduce a Virus, malware, spyware, disabling or malicious device or code, time bomb, or any other code that may cause harm to the Software; and
      6. operate or sublicense the Software for the benefit of a third party, including as a service bureau, time share facility, outsourcing or otherwise.
    5. If You breach this clause 9, We may terminate this Agreement (and any applicable Order Form) immediately.
  7. Data
    1. Subject to clause 12(c)(ii), We will use Our reasonable endeavours to enter data provided by You reasonably required by You to use the Software prior to the Date of Installation (Your Data) and assist You to set up any real estate listings if required in the Software as at the Date of Installation.
    2. You irrevocably acknowledge and consent, in exchange for the use of the Software any of Your Data which is loaded into the Software is provided to Us for our own use and absolute property.
    3. You must ensure that a copy of Your Data and any other data supplied by You to Us is securely stored and hosted by You and/or the Users.
  8. Your Information Technology and Communications Infrastructure
    1. You acknowledge that You are responsible for ensuring that Your information technology and communications infrastructure (ITC) comply with the Agent Power System Requirements for the Term of this Agreement.
    2. You acknowledge that:
      1. the Software may not operate properly (or at all) on third party hardware or platforms;
      2. You must ensure that Your ITC is properly maintained, complies with Agent Power System Requirements and does not operate in a way which may adversely affect the operation of the Software.
    3. If during the Term, We notify You of a mandatory upgrade to the Software We will offer such update to You at no additional cost to You except for any Data Transition costs, any third party costs, or such other reasonable costs incurred by Us in providing You with the mandatory upgrade to the Software.
    4. If You do not implement a mandatory upgrade to the Software within (30) days of receiving such notice from Us as contemplated under clause 11(c) We may, at Our sole discretion, terminate this Agreement (and any relevant Order Forms) by providing You further notice of such termination.
  9. Warranties
    1. Both parties warrant that they have the capacity, power and authority to enter into and perform this Agreement and have obtained all necessary approvals, consents and authorisations to enable it to do so.
    2. Subject to this clause 12, to the extent permitted by law, We provide the Services to You on an "as is" basis and We do not make or give any express or implied representations, conditions or warranties in relation to the Services, including We do not warrant that the Services will operate uninterrupted, be free from defects or viruses or meet Your requirements.
    3. Without limiting clause 12(b), You acknowledge that We:
      1. do not provide any legal advice or legal services, accounting or bookkeeping advice by providing You and the Users access to the Services;
      2. do not warrant or represent the accuracy, currency or quality of any legal or accounting information, Your Data, guides, legal forms, precedents, letters or documents which are provided as examples only and on the basis that You and any Users are suitably qualified (or working under the direction of suitably qualified personnel) and will not rely on such documents;
      3. do not warrant or represent that the Software can be accessed or operate without defects, data corruptions, software failures or performance degradation caused by viruses or by other software or components on Your, the Users' or third-party hardware that may interfere with the Software (including any third party internet networks); and
      4. do not warrant or represent that any of Your Data or any other data supplied by You to Us and hosted on Our servers is secure, can be accessed uninterrupted or will be free from defects and viruses or will be stored, hosted or accessed without any loss or damage, data corruption, software failures or degradation.
  10. Liability
    1. Your sole and exclusive remedy for Our breach of any statutorily implied warranties, conditions or guarantees which cannot lawfully be excluded is, to the extent legally permitted, limited to, at Our option, either providing those Services again or paying the cost of providing those Services again in respect of which the breach occurred.
    2. To the maximum extent permitted by applicable law, We exclude and will not be liable for any loss of revenue, business, anticipated savings or profits, loss of goodwill, loss of Your Data or for any indirect or consequential loss arising out of or relating to the Services, the Software or this Agreement (including any applicable Order Form).
    3. To the maximum extent permitted by applicable law, Our liability arising under or in connection with this Agreement which is not otherwise excluded by clauses 13(a) and 13(b), is limited, in the aggregate, to the Amount paid or payable by You to Us under this Agreement.
    4. Our limitations and exclusions of liability as set out in this clause 13 apply regardless of the basis on which the relevant liability arises, whether in contract, tort (including negligence), equity, breach of statutory duty or otherwise.
  11. Indemnity
    1. Where a Third Party Intellectual Property Claim is made against You, You must promptly notify Us and comply with Our reasonable directions in relation to the Third Party Intellectual Property Claim. You must not settle such Third Party Intellectual Property Claim, make any admissions or consent to any judgment being entered without Our prior written consent.
    2. Subject to clause 14(c), and provided You have complied with clause 15(a), We will pay any judgment finally awarded by a court against You in respect of a Third Party Intellectual Property Claim or amount which is payable by You to settle a Third Party Intellectual Property Claim. This payment will be Our sole and exclusive liability to You in connection with such Third Party Intellectual Property Claim.
    3. Our liability under clause 14(b) will be reduced to the extent the Third Party Intellectual Property Claim is based on:
      1. use of a superseded or modified release of Software, if the Third Party Intellectual Property Claim could have been avoided by using a later or unmodified release of the Software;
      2. the combination, operation or use of the Software with programs or data models not provided by Us; or any use of other software not made or provided by Us either in conjunction with the Software or otherwise by You.
  12. Privacy
    1. Each party must ensure that when it collects, uses, discloses, transfers or otherwise handles Personal Information in relation to its obligations under this Agreement, it at all times complies with applicable Privacy Laws and cooperates with applicable regulatory bodies as required.
    2. Without limiting the obligations under clause 15(a), You must:
      1. procure that the Users comply with applicable Privacy Laws; and
      2. not do anything with the handled Personal Information that will cause Us to breach Our obligations under Privacy Laws.
  13. Confidentiality
    1. The Receiving Party may only use the Confidential Information of the Disclosing Party for the purposes of exercising its rights or performing its obligations under this Agreement and other such agreements produced by the software.
    2. The Receiving Party must keep confidential, and not disclose, the Confidential Information of the Disclosing Party, except as permitted under clause 16(d).
    3. This clause 16 extends to Confidential Information of a party provided to or obtained by the other party before the Commencement Date.
    4. The Receiving Party may disclose Confidential Information of the Disclosing Party:
      1. to those of its personnel or any third party that need to know for the purposes of the Receiving Party exercising its rights or performing its obligations under this Agreement, provided that the Receiving Party uses its reasonable endeavours to ensure that such personnel or third parties keep the Confidential Information confidential in a manner consistent with the Receiving Party's obligation under this clause;
      2. to those third parties that need to know for the purposes of monitoring and analysing the Disclosing Party's usage of the Software and to assist with improving the Services provided under this Agreement;
      3. to the extent that disclosure is required by Law provided that the Receiving Party provides the Disclosing Party reasonable notice before any such disclosure and takes all reasonable steps to maintain that Confidential Information in confidence;
      4. with the prior written consent of the Disclosing Party; or
      5. pursuant to another agreement where consent is provided for the provision of related transaction services.
  14. Termination
    1. Either party may terminate this Agreement for cause with immediate effect by providing written notice to the other party if the other party:
      1. commits a material breach of this Agreement that is capable of remedy and fails to remedy that breach within twenty eight (28) days after receiving written notice identifying the breach and requiring the breach to be remedied;
      2. commits a material breach of this Agreement that is not capable of remedy; or
      3. is the subject of an Insolvency Event.
    2. If this Agreement is terminated or expires:
      1. Your right to access or use the Services ceases; and
      2. You must immediately pay all outstanding amounts due and payable under this Agreement.
    3. If this Agreement is terminated or expires and where You request in writing, We may grant You access to and use of the Software for a further thirty (30) business days in order for You to migrate Your Data and any other data You have provided to Us during the Term back to You or an alternative service provider. For clarity, We are not obliged to provide You any assistance with migrating or transferring such data.
    4. Any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination of this Agreement, shall survive and be enforceable after such termination and termination of this Agreement does not affect any of Your or Our accrued rights or remedies under this Agreement.
  15. Changes to the Software Licence Agreement Terms and Conditions
    1. By purchasing the Services You agree to be bound by the current version of the Agent Power Software Licence Agreement Terms and Conditions as published on the Agent Power website: https://agentpower.com.au/terms
    2. You acknowledge that by publishing the current version of the Agent Power Software Licence Agreement Terms and Conditions at https://agentpower.com.au/terms this will be sufficient notice of any amendment to this Agreement and if You continue to use Our Services waiver any other rights You may have under this or any previous version of this Agreement, to the extent applicable at law.
    3. If, in Our reasonable opinion, these changes are detrimental to You, We will provide You with written notice of such change.
  16. Force Majeure
    1. Notwithstanding any other provision of this Agreement, neither party will be liable for any failure to perform its obligations under this Agreement where that performance is delayed, prevented, restricted or interfered with as a result of a fire, flood, earthquake, utility failure, elements of nature, biosecurity event or act of God, riot, civil disorder, rebellion, acts of war or terrorism, telecommunication breakdowns or interruptions and power failures.
  17. Dispute
    1. For any Dispute between You and Us, You agree to first contact Us at support@agentpower.com.au or 1300 027 032 and attempt to resolve such Dispute with Us informally;
    2. Subject to clause 20(a), we each agree to attempt to resolve the Dispute through the use of alternative dispute resolution procedures, such as mediation or arbitration; and
    3. To the extent permitted at law, we each agree to not commence any court proceedings relating to a Dispute unless a party is seeking urgent injunctive relief or equitable relief.
  18. Entire Agreement

You acknowledge that this Agreement constitutes the entire understanding between Us and You and supersedes all other prior or contemporaneous negotiations, agreements or understandings whether written or oral between Us and You or otherwise published by Us relating to this Agreement.

  1. Severability
    1. If a provision of this Agreement or a right or remedy of a party under this Agreement is invalid or unenforceable it is read down or severed only to the extent of the invalidity or unenforceability.
    2. If there is any inconsistency between the documents incorporated in this Agreement then, unless otherwise expressed, the documents will be given the following order of priority (with paragraph (i) being the first in the order of priority) such that the conflicting provision in the document lower in the order of priority will be read down to the extent necessary to resolve the conflict:
      1. any executed Order Form; and
      2. Agent Power Software Licence Agreement Terms and Conditions;
      3. any other document executed by the parties.
  2. Assignment and subcontracting
    1. You must not assign or subcontract Your rights and/or obligations under this Agreement without Our prior written approval. You are to provide Us with at least 30 days’ notice in writing when making a request under clause 23(a).
    2. We may subcontract the whole or any part of Our obligations under this Agreement without obtaining Your prior written consent.
  3. Governing Law

You acknowledge that this Agreement (including all Order Forms) are governed by the laws in force in Victoria, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of Victoria and the courts that hear appeals from them.