TRAK LMS License Agreement - General Terms

​ This Agreement is formed between Blue Flag Pty Ltd (ACN 128 781 395) of Level 1, 254 Dorcas Street, South Melbourne, Victoria, Australia 3205 (Us, Our, We) and the customer as set out in the Order Form (You, Your).

​ THE PARTIES AGREE THAT:

1 Definitions and interpretation

​ 1.1 Definitions

​ In this Agreement:

​ Agreement means this agreement and includes these License Agreement General Terms, the Order Form, the User Terms of Use and the Privacy Policy;

​ Applications means the applications made available to You through the Platform, asset out in the Order Form, which may be varied between the Parties in writing from time to time;

​ Business Day means any day that is not a weekend or public holiday in the State of Victoria, Australia;

​ Change of Control in relation to:

​ (a) a body corporate (including a body corporate acting in the capacity as trustee of a trust) means the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether directly or indirectly or through one or more intervening persons, companies or trusts):

​ (i) control the composition of more than one half of the body's board of directors;

​ (ii) be in a position to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the members of the body; or

​ (iii) hold or have a beneficial interest in more than one half of the issued share capital of the body;

​ (b) a trust means the occurrence of an event or circumstance where a person who is not presently the Controlling Person of that trust becomes the Controlling Person of that trust;

​ Commencement Date means the date upon which You execute the Order Form;

​ Confidential information means the confidential information of a Party which relates to the subject matter of this Agreement and includes all information:

​ (a) relating to trade secrets, know-how, financial information and other commercially valuable information of whatever description and in whatever form (whether written or oral) which may be disclosed by one Party to the other in connection with this Agreement or otherwise concerning the Platform, any technology, marketing strategies and business of the disclosing Party, the terms of this Agreement and any information which is by its nature confidential;

​ (b) that is designated by the disclosing Party to be confidential;

​ (c) which is by its nature confidential; or

​ (d) which the receiving Party ought reasonably to know is confidential, but does not include:

​ (e) information already known to the receiving Party at the time of disclosure by the other Party or information in the public domain other than as a result of disclosure by a Party in breach of its obligations of confidentiality under this Agreement;

​ Controlling Person means, in relation to a trust, the person in whom is vested the ability to appoint a new or additional trustee of that trust or remove the trustee of that trust or with whose instructions such trustees are accustomed to act or any other power which in all relevant circumstances would cause a reasonable person to believe that that person controlled the trust;

​ Default Interest means interest payable at the rate of 12 per cent per annum calculated on a daily basis;

​ Dispute means a dispute, difference or question relating to this Agreement including any dispute, difference or question regarding the breach, termination, validity or subject matter of this Agreement, or dispute as to the circumstances leading to the entry by the Parties into this Agreement or any claim whether in tort, negligence, equity, under statute or otherwise;

​ Fixed Percentage Increase has the meaning given to it in the Order Form;

​ Initial Term means the initial term of this Agreement as set out in the Order Form;

​ Intellectual Property Rights means all present and future intellectual and industrial property rights throughout the world, including all rights, whether conferred by statute, common law, equity or otherwise, in or in relation to:

​ (a) inventions, discoveries and novel designs (whether or not registered or registrable as patents or designs) including developments or improvements of equipment, products, technology, processes, methods or techniques;

​ (b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist, and includes moral rights;

​ (c) obligations to have confidential information and trade secrets kept confidential and secret;

​ (d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and

​ (e) circuit layouts;

​ License means the license to use the Platform granted by Us to You on the terms of this Agreement;

​ License Agreement General Terms means the general terms set out in this document, which forms part of the Agreement;

​ License Fees means the fees set out in the Order Form, excluding GST unless otherwise provided for in the Order Form;

​ Parties means the parties to this Agreement;

​ Platform means the platform made available to You by Us via the login function on the TRAK LMS website at [yoursubdomain].ontrak.app and includes any Applications made available to You through it;

​ Privacy Policy means the privacy policy which appears on the Website, as amended from time to time;

​ Order Form means the order form which We supply to You containing commercial terms forming part of this Agreement;

​ Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth);

​ Renewal Term has the meaning it is given by clause 2(a)(ii) of these License Agreement General Terms;

​ Special Terms means the special terms, if any, set out in the Order Form which form part of this Agreement;

​ Term means the Initial Term and each of the Renewal Terms (if any);

​ User Terms of Use means the terms of use which Users must agree to for the purpose of using the Platform; and

​ Users means the users of the Platform under Your License.

​ 1.2 Interpretation

​ In this Agreement, unless the context otherwise requires:

​ (a) headings and notes in square brackets are for convenience only and do not affect the interpretation of this Agreement, except for the purpose of rectifying any erroneous cross-reference;

​ (b) words importing the singular include the plural and vice versa;

​ (c) words importing a gender include all genders;

​ (d) a reference to a paragraph, clause, or schedule is a reference to a paragraph, clause, or schedule to this Agreement;

​ (e) references to any document or agreement include references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;

​ (f) all monetary amounts referred to in this Agreement are in AUD or Australian currency unless expressly stated otherwise;

​ (g) a reference to a party to this Agreement includes that party’s legal successors (including executors and administrators) and permitted assigns; and

​ (h) the words ‘including’, ‘includes’ or ‘for example’ or similar expressions are not words of limitation.

2 Agreement and grant of License

​ (a) This Agreement commences on the Commencement Date and, subject to its earlier termination or expiration under the terms of this Agreement, shall continue for the Initial Term.

​ (i) For customers with an Initial Term of 1 year or less, at the end of the Initial Term, the Agreement shall automatically and perpetually renew for successive periods of 1 year on the terms and conditions of this Agreement (each a Renewal Term) unless either Party gives notice in writing to the other Party at least 3 months prior to the expiry of the Initial Term or the Renewal Term (as the case may be) that it does not wish for this Agreement to be renewed beyond that Term.

​ (ii) For customers with an Initial Term of more than 1 year, at the end of the Initial Term, the Agreement shall automatically and perpetually renew for successive periods of time equivalent to the Initial Term on the terms and conditions of this Agreement (each a Renewal Term) unless either Party gives notice in writing to the other Party at least 3 months prior to the expiry of the Initial Term or the Renewal Term (as the case may be) that it does not wish for this Agreement to be renewed beyond that Term.

​ (b) During the Term, We grant the License to You and You accept the License on the terms of this Agreement.

​ (c) From the Commencement Date, You are responsible and liable for all Users' use of the Platform. Users may only use the Platform in accordance with User Terms of Use as notified by Us from time to time.

​ (d) The Order Form and these License Agreement General Terms may only be varied by agreement between the Parties in writing.

​ (e) If there is any inconsistency between any of the terms of this Agreement, then, to the extent of the inconsistency, the order of precedence will be as follows:

​ (i) the Order Form;

​ (ii) these License Agreement General Terms;

​ (iii) the User Terms of Use; and

​ (iv) the Acceptable Use Policy.

3 Payment of License Fees

​ (a) In consideration of Us granting the License to You, You must pay the License Fees to Us in accordance with each valid tax invoice We render to You in accordance with this Agreement (Invoice).

​ (b) Subject to clause 3(c), if You do not pay any of the License Fees to Us on or by the due date on the Invoice (Due Date), Default Interest will be payable on the overdue amount and, if any payment of License Fees and interest is owing to Us after 30 days from the Due Date, We may do any or all of the following:

​ (i) suspend Your License;

​ (ii) terminate this Agreement;

​ (iii) notwithstanding any other term of this Agreement, initiate proceedings to recover the License Fees and Default Interest then outstanding as a liquidated debt from You.

​ (c) If You dispute the whole or any part of the amount claimed in an Invoice rendered by Us to You in connection with this Agreement, You must pay any undisputed portion on or by the Due Date. Either You or We can refer the dispute regarding the disputed amount to the dispute resolution procedure prescribed by clause 9 of this Agreement. If it is determined by that process that a further amount is payable in addition to the disputed amount, You must pay that amount to Us together with Default Interest on the outstanding amount since the Due Date.

​ (d) On each anniversary of the Commencement Date (including at the commencement of any Renewal Term(s), the License Fees payable by You during the immediately preceding 12 month period will automatically be increased by the Fixed Percentage Increase.

4 License conditions

​ (a) We warrant that We have the authority to grant the License to You.

​ (b) The License We grant to You is a limited, revocable, non-transferable, nonassignable, non-exclusive license for the Users to access and use the Platform in accordance with this Agreement.

​ (c) You warrant that:

​ (i) You have obtained all the necessary authorizations and consents for You to validly enter into, and perform all of Your obligations arising under, this Agreement; and

​ (ii) You will only allow persons who have been provided with a username and password by Us to use the Platform.

​ (d) Unless expressly provided otherwise in the Agreement or agreed by Us in writing, We are not required to support the Platform, whether by providing advice, training, error-correction, modification, updates, upgrades, new releases or enhancements or otherwise.

​ (e) We agree to provide limited support during the Term by way of a support ticketing system which enables Users to report technical issues or perceived data inaccuracies within the Platform. In the event that We receive notice of a technical issue or perceived data inaccuracy within the Platform through the support ticketing system, We will use reasonable endeavors ...