The definitions and interpretation section in this Agreement are set out in clause 23 (Definitions and interpretation).
This Agreement is between you, our customer (referred to as you or your) and PULSS Pty Ltd T/A iFactFind (ABN 70 135 773 090), its successors and assignees (referred to as us, we or our) and collectively the Parties. This Agreement is available at www.ifactfind.com.au/saas-agreement
This Agreement forms the agreement under which we provide you with access to iFactFind. Please read this Agreement carefully. If you have any questions, please contact us using the contact details before you access the Site.
You have requested access to and use of iFactFind. We will supply iFactFind as set out in this Agreement
This Agreement is made up of the following documents (in order of priority):
You accept this Agreement by:
By accepting this Agreement, you warrant:
This Agreement commences on the Agreement Start Date and continues until the date that this Agreement is terminated by you or ifactFind. Any renewal process for this Agreement is set out in the Subscription Form.
We or the Site may create an account for you (Account), in order for you and your Authorised Users to access and use iFactFind. You must ensure that any information you provide to us, or we request from you as part of the creation process is complete and accurate.
You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account as set out in this Agreement. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account in a form acceptable to us
We or the Site will provide you with certain Account details (such as usernames and passwords) when an Account is created for you. It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account comply with this Agreement
We are not responsible for the management or administration of your Account or your Authorised Users.
In consideration for payment of the Fees, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use iFactFind for the Subscription Form Term (Licence)
You must not (and must ensure your Authorised Users do not) access or use iFactFind except as permitted by the Licence and you must not and must not permit any other person to:
For us to provide iFactFind to you, you warrant that you are authorised to use iFactFind by any third party to which you have a legal obligation to notify of such use.
In need, you must promptly obtain and provide to us any required licences, approvals or consents necessary for our performance of iFactFind
You acknowledge that in order to access iFactFind you will be required to use multi-factor authentication as directed by us.
If set out in the Subscription Form, you agree that the Licence permits you to access and use iFactFind in accordance with the number of Authorised Users, as set out in that Subscription Form
You may, at any time, increase the number of Authorised Users by submitting a further Subscription Form to us and we will apply new Fees (and support fees if relevant) which will be applicable as of the effective date of the increase of the number of Authorised Users.
You acknowledge and agree that
We will provide the Setup Service
If you require any changes to the scope, functionality or nature of iFactFind or the elements of the Software used to provide iFactFind or any bespoke customisations to iFactFind, you must notify us of the changes you require
Following notification, at our discretion, we may provide you with written notice in the form of a statement of work covering:
If you agree to the changes to iFactFind, the Development Services and the Development Fees then, subject to the Parties signing a statement of work and this Agreement, we will provide the Development Services to you in consideration for payment of the Development Fee
During the Subscription Form Term, we will provide you with technical support services as set out in the Subscription Form
We will at all times comply with the Privacy Act, and in relation to Customer Data that contains or is Personal Information, we will only use this Customer Data in the manner permitted by this Agreement and the Privacy Act
You must pay us any Fees and any other amounts payable to us under this Agreement in accordance with the Payment Terms
If any payment has not been made in accordance with the Payment Terms, we may (in our absolute discretion):
If you rectify such non-payment after iFactFind have been suspended, then we will recommence the provision of iFactFind as soon as reasonably practicable
You must pay us the Fees and any other amount payable to us under this Agreement, without set off or delay, via credit card or any other payment method set out in the Subscription Form
The Fees are subject to change upon 30 days’ notice from us to you and will apply to the next billing cycle. Such notice may be provided at any time by posting the changes on our Site, via email or via a notification to your Account.
The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made
If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
All Intellectual Property in the Software, iFactFind and all Intellectual Property developed, adapted, modified or created by us or our Personnel (including in connection with this Agreement, the Software and iFactFind and any machine learning algorithms output from iFactFind) is and will remain owned exclusively by us or our third party service providers
You must not, without our prior written consent:
Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of iFactFind, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it
We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing
As between you and us:
You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Agreement Term solely to:
Despite anything to the contrary, to the maximum extent permitted by law:
Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you waive and release us from and against, all Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) arising from or in connection with any:
To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 13 (Privacy), clause 16 (Intellectual Property rights), clause 21 (Confidential Information) and your Authorised Users’ use of iFactFind contrary to this Agreement, including from any claim relating to the Customer Data
You acknowledge and agree that:
Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of iFactFind by us to you which cannot be excluded, restricted or modified (Statutory Rights).
iFactFind comes with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled
If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability iFactFind provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
The Parties may terminate this Agreement by a mutually signed agreement. All Subscription Forms in existence at the time of termination will also terminate
To the extent permitted by law, either Party may terminate this Agreement and any affected Subscription Form, if the other Party:
We may terminate this Agreement or a Subscription Form by providing you with five Business Days’ notice, in our sole discretion, if you fail to pay an invoice within 7 days of the invoice payment date
On termination of this Agreement or a Subscription Form:
You must, within 3 months of the date of termination or expiry of this Agreement or relevant Subscription Form, copy all Customer Data and we will allow you access to iFactFind during this time solely for that purpose. After this time, we will be entitled to permanently delete all Customer Data on iFactFind
On termination of this Agreement, we may offer to provide you with disengagement support services at our then current rates, and such disengagement support services must be agreed in writing by the Parties
The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement or a Subscription Form.
We warrant and agree that:
You warrant and agree that:
Each Party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other Party (Discloser) except:
The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with this Agreement
This Agreement may only be amended by a written instrument executed by both Parties
Neither Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Party. Any purported dealing in breach of this clause is of no force or effect
This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter
iFactFind will be provided to you on a non-exclusive basis
We reserve the right at any time and from time to time to change or remove features of iFactFind provided that, where there is any material negative alteration to the functionality of iFactFind in accordance with this clause, we will provide you with 20 Business Days’ notice and you may terminate this Agreement and Subscription Forms by written notice without Liability to us.
iFactFind may be accessed in Australia and overseas (except from the Russian Federation or The People’s Republic of China which is blocked). We make no representation that iFactFind complies with the Laws (including Intellectual Property laws) of any country outside of Australia. If you access iFactFind from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access iFactFind.
With your prior written consent, we may use advertising or publicly announce that we have undertaken work for you, including in website testimonials and in our marketing material
We may engage subcontractors to perform iFactFind on our behalf. Despite this, we retain responsibility for all our obligations under this Agreement
Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to this Agreement does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing
If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions
This Agreement may be executed in any number of counterparts that together will form one instrument.
Unless defined in the Subscription Form the following words will mean:
In this Agreement, unless the context otherwise requires: