Provision of Services Agreement (the ‘Agreement’)
Rungopher: Rungopher Trading ABN: 70622229994 Customer / You:
1. Definitions and interpretations
In this Agreement:
Confidential Information of a party means all nonpublic information of that party which is disclosed by that party, including but not limited to Customer Data (whether owned by the Customer, clients of the Customer, Rungopher or Data Supplier), or, in the case of disclosure by RunGopher, that which would reasonably be considered to be confidential (including, but not limited to all information and documentation related to this Agreement, the Software and Services) and, except as otherwise agreed in writing, includes such information disclosed prior to the execution of this Agreement;
Customer means the person, company or other legal entity nominated as the Customer above; It includes any additional person or company nominated by the Customer, whether orally or in writing, to receive the Services and in relation to a company the term “the Customer” includes a body corporate which is related to it within the meaning of section 9 of the Corporations Act 2001 and which uses the Services. Where the Customer comprises more than one person the Agreement will bind each of those persons jointly and severally;
Customer Data means any data whether owned by the Customer, Customer’s clients or Data Supplier: (i) deployed on or within the Software, or provided to RunGopher for that purpose; or (ii) collected or generated through the Software (including metadata analysis and data generated via the addition of supplementary information);
Data Supplier means any third-party supplier of Customer Data;
Fees in respect of a Service means the Monthly Fees and Variable Fees as set out in the Schedule 1;
Force Majeure Event means any cause beyond a party’s reasonable control affecting the performance of its obligations under the Agreement, including, but not limited to, fire, flood, explosion, accident, war, act of terrorism, governmental requirement, civil or military authority, Acts of God, industrial disputes, and acts or omissions of other providers of telecommunications services;
GST means any goods and services tax, value added tax or sales tax imposed on the sale or supply of goods, services and rights including but not limited to a tax imposed by the A new Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth;
Intellectual Property Rights means patents, trademarks, service marks, logos, trade names, trade dress, internet domain names, rights in design, copyright (including rights in computer software) and moral rights, database rights, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world;
Monthly Fees mean monthly fees applicable to a Selected Subscription Plan as set out in the Schedule 1.
Platform Subscription Plan means subscription plans specified in the Schedule 1;
Services means the services to be provided to the Customer and set out in a Selected Subscription Plan;
Selected Subscription Plan means a particular Platform Subscription Plan selected and subscribed to by the Customer;
Software means the proprietary software created by RunGopher which is licensed to the Customer and bundled as part of the Services; Software forms part of the Services;
Starter Plan means the most basic Platform Subscription Plan as defined in Schedule 1.
Term means twelve (12) month from the date the Customer has subscribed to any Platform Subscription Plan, except for the Starter Plan.
Variable Fees means the fees described as such in Schedule 1. Software and Services
2. Provision of Services and variations
2.1 RunGopher will provide the Customer with the Service(s) in accordance with the Selected Subscription Plan as described in the Schedule 1 to this Agreement. In the event of any inconsistency between the terms contained in Schedule1 and this Agreement, the Schedule 1 will prevail to the extent of inconsistency.
2.2 RunGopher may vary the Service(s) by sixty (60) days’ notice in writing to the Customer at any time. Such a variation may include the addition or enhancement of any feature or characteristic of the relevant Software and/or Service and will be applied at a non-critical time to the Customer’s business.
3. Fees, invoicing and payment
3.1 The Customer will pay RunGopher for the Service(s) in accordance with the Fees specified in Schedule 1.
3.2 RunGopher may invoice the Customer the Monthly Fees for Selected Subscription Plan monthly in advance.
3.3 Rungopher conversations require credit to be prepaid, prior to commencing SMS conversations with the Customer’s contacts. The cost of each conversation is specified in Schedule 1, Variable Fees. Prepaid credit for conversations may be purchased via the online facility or by invoice, and allocated to the account at the time of payment. If the Customer exhausts their prepaid credit and continues the use of the Services, the Customer will incur additional Variable Fees (‘Additional Variable Fees’), based on actual usage amount.
3.4 RunGopher may invoice the Customer the Additional Variable Fees in arrears separately or together with the next month’s Monthly Fees.
3.5 RunGopher will provide the Customer with a tax invoice, which may be provided in paper format or electronically.
3.6 RunGopher may on thirty (30) days’ prior written notice to the Customer, alter the frequency of its invoicing cycle.
3.7 All Fees and any other amounts that may be quoted by RunGopher are exclusive of GST and all other taxes and duties.
3.8 The Customer must pay each of RunGopher’s invoices in full in accordance with the Payment Terms specified in Schedule 1 and, where no time is set out in the Schedule 1, within fourteen (14) days of the date of the invoice.
3.9 RunGopher may impose interest on the outstanding amount from the due date until it is paid in full at the rate of the Westpac Bank Indicative lending rate as published in The Australian Financial Review plus five (5) per cent per annum.
4. Disputed Invoices
4.1 If the Customer disputes any part of an invoice submitted by RunGopher, the Customer must:
a) notify RunGopher in writing within 14 (fourteen) days of receipt of the invoice of the reasons for disputing the invoice; and
b) pay the undisputed amount on or before the due date for payment.
4.2 The parties must endeavour to resolve the disputed amount between themselves within twenty-one (21) days of the notification being given by the Customer, failing which, the dispute resolution procedure set out in clause 14 applies.
4.3 Invoiced Fees that are not disputed in good faith within two (2) months of the date of an invoice are deemed to be correct.
4.4 RunGopher may offset any amounts payable to the Customer against any outstanding Fees.
5. Suspension of Software and Services
5.1 Where a Customer has failed to pay in full any invoice due under this Agreement in accordance with this Agreement, RunGopher may by notice to Customer, suspend the Software and/or Services in accordance this Agreement.
5.2 RunGopher is entitled, without liability, to suspend all or part of the Services immediately where:
a) it is necessary due to a Force Majeure Event;
b) it is necessary for repair, maintenance or service of any part of its service, having notified the Customer as soon as practicable;
c) RunGopher has a right under this Agreement to terminate, cancel or suspend the Service;
d) RunGopher, acting reasonably, suspects that there has been fraudulent or illegal use of the Services;
e) the Customer has breached the Agreement (other than a breach which separately gives rise to rights under clause 5.1) and either:
i. the breach is not capable of remedy; or
ii. the breach is capable of remedy and the Customer has not remedied that breach within the period specified in RunGopher’s notice; or
iii. RunGopher reasonably believes that the Customer is jeopardising the operation or quality of services that RunGopher supplies to its customers.
5.3 RunGopher will end a suspension as soon as reasonably practicable after the event or circumstance requiring the suspension has ceased (if applicable), or in the case of a breach by the Customer, when the Customer has remedied the breach within a further period specified by RunGopher in writing.
6. Intellectual Property Rights
6.1 All Intellectual Property Rights which are owned by either party as at the date of this Agreement will at all times remain owned by that party exclusively.
6.2 Except as expressly provided, nothing in this Agreement confers on a party any right or interest in, or licence to use, any of the other party’s or any third party’s Intellectual Property Rights.
6.3 RunGopher will retain ownership of any intellectual property created by RunGopher under or in connection with this Agreement and will grant the Customer a non-exclusive licence to use such intellectual property to the extent needed to benefit from the Software and/or Service(s) in accordance and for the duration of this Agreement. For the avoidance of doubt, where intellectual property rights arise as a result of the performance of this Agreement by or on behalf of RunGopher, those rights vest on creation in RunGopher.
6.4 The Customer shall not directly or indirectly allow or cause a third party to modify, alter, reverse assemble or reverse compile the Software or any part of the Software or merge all or any part of the Software with any other software without the RunGopher’s written permission.
6.5 The Software as modified or altered remains the property of RunGopher in all respects, whether modified by the Customer, Rungopher or a third party and whether or not authorised pursuant to this Agreement. Specifically, the Customer shall if necessary assign to RunGopher all Intellectual Property Rights arising out of any modifications to the Software.
6.6 This Agreement shall apply to the Software as modified or altered.
6.7 The Customer will fully indemnify RunGopher against all liability which may be incurred by RunGopher due to a breach by the Customer of this clause and were modifications or alterations described in this clause infringe any Intellectual Property Rights of a third party or otherwise cause RunGopher to suffer loss, damages or expense.
7. Confidentiality and Privacy
7.1 Each party must keep the Confidential Information confidential and must not disclose that information to any third party (other than its professional advisors) without the written consent of the other party. Each party must use the Confidential Information only for the purpose of complying with its obligations under this Agreement, and only for the purpose for which it is provided.
7.2 Each party must comply with the Privacy Act 1988 (Cth), the Australian Privacy Principles, all other relevant privacy laws and regulations as to the use and disclosure of personal information collected under or in connection with this Agreement or contained within the Customer Data.
7.3 The Customer assumes all responsibility in relation to compliance with the Spam Act 2003 (Cth), Do Not Call Register Act (Cth) 2006 and all other relevant laws and regulations in respect of the use of the Services by the Customer in accordance with this Agreement.
7.4 The Customer accepts full liability and indemnifies RunGopher (including its directors, officers, employees, agents and other representatives) on a full indemnity basis for any loss or damage that may arise from any contravention of this clause 7 by the Customer.
8. Telecommunication links and services
8.1 The Customer acknowledges that where the Customer utilizes telecommunication links and/or services in the process of the use of the Services, RunGopher has no control over the usage of such telecommunication services by the Customer, and consequently the Customer accepts full liability and indemnifies RunGopher for any loss that may arise from the inappropriate or illegal use of any telecommunication links and/or services by the Customer.
8.2 If RunGopher resells to the Customer any services purchased from a third party (‘Resold Services’), the Customer must not willfully or negligently do or omit to do anything which would cause RunGopher to breach any of the terms of supply of the Resold Services from the third party.
8.3 RunGopher has no liability to the Customer for any faults in performance of the Services due to a failure of utilizes telecommunication links and/or services and/or any systems procured and/or used by the Customer. The Customer accepts full liability and indemnifies RunGopher (including its directors, officers, employees, agents and other representatives) on a full indemnity basis for any loss or damage that may arise from any contravention of this clause 8 by the Customer.
9. Customer Data
9.1 RunGopher may access Customer Data:
a) as required to comply with its obligations under this agreement;
b) to respond to Software or technical problems;
c) in the course of enhancing the Software;
d) to prepare case studies and aggregate statistics, upon anonymizing all customer data.
e) for other marketing purposes, subject to prior consent of the Customer;
f) otherwise at the Customer’s request.
9.2 RunGopher shall make every reasonable and commercial effort to ensure the confidentiality of, and protect and guard the security of, all Customer Data.
9.3 Each party must not use the Customer Data otherwise than in accordance with the terms of this Agreement.
9.4 The Customer accepts full liability and indemnifies RunGopher (including its directors, officers, employees, agents and other representatives) on a full indemnity basis for any loss or damage that may arise from any contravention of this clause 9 by the Customer or from any use of the Customer Data, except for wrongful or illigal use of the Customer Data by RunGopher.
10. Term and Termination
10.1 The Term of this Agreement commences on the date the Customer subscribes to any Platform Subscription Plan, other than the Starter Plan and shall continue for an initial fixed period of twelve (12) months after this date (“Initial Term”) following which it shall continue on a month-to-month basis until either party gives the other not less than thirty (30) days’ notice to terminate, such termination to take effect no earlier than the end of the Initial Term.
10.2 Subscription to a Starter Plan does not attract any minimum length of the contract, however, all other relevant provisions of the Agreement apply to such subscription.
10.3 Either party may terminate this Agreement immediately upon written notice to the other party in the event of insolvency.
10.4 If the Customer (i) commits a material breach of this Agreement and fails to rectify the breach within fourteen (14) days of written notice from RunGopher notifying the Customer to do so or (ii) fails to pay undisputed outstanding Fees in accordance with Payment Terms or this Agreement, RunGopher at its sole discretion may (without any notice or liability) do any or all of the following with or without any prior written notice:
a) terminate or temporarily suspend all of the Services or just the part of the Services that is the subject of the default in accordance with clause 5;
b) terminate this Agreement; and
c) exercise such other remedies that are available to RunGopher at law.
If RunGopher terminates this Agreement in accordance with clause 10.4, the Customer is still liable to RunGopher for all the Fees and charges under this Agreement up to the end of the Initial Term.
10.5 Upon termination of this Agreement, without limiting other rights accrued by each party under this Agreement:
a) each party must immediately cease use of and, within fourteen (14) days of the termination or expiry of this Agreement, return to the other party the other party’s Confidential Information. Alternatively, and subject to prior written permission of the other party, destroy that party’s Confidential Information;
b) all outstanding invoices for Software and/or Services become due and payable immediately in accordance with Payment Terms or, if not specified, within 14 days of receiving the final invoice.
c) Each clause which, by its nature, ought to survive the termination of this Agreement survives. The following clauses also survive the termination or expiry of this Agreement: 6, 7, 8, 9, 11, 12, 13, 14 and 15.
11. No Poaching
11.1 The Customer must not, during the term of this Agreement and for each of the following periods (and in the areas thereafter set out) following the termination or expiry of this Agreement, employ, or solicit the employment of, any employee of RunGopher or otherwise enter into an agreement for the provision of service directly or indirectly by such a person to the Customer, without the prior written permission of RunGopher: (a) in the first six (6) months after the expiry or termination of this Agreement – in Australian or overseas; (b) in the following twelve (12) months after the expiry or termination of this Agreement – in New South Wales.
11.2 Each of the restrictions in clause 11.1(a) and 12.2(b) is a separate and independent obligation on the Customer and if any of them is held to be illegal or unenforceable it is severed from the contract and does not affect the application or effectiveness of the others. If the Customer breaches this clause in relation to a person, RunGopher may invoice the Customer for, and the Customer must, within 30 days of the date of the invoice, pay the other party by way of liquidated damages an amount equal to one year’s salary (at the rate most recently paid by the other party) of that person (if an employee). The Customer acknowledges and agrees the prohibitions and restrictions contained in this clause 11 are reasonable and necessary to protect the business interest of RunGopher and the Customer receives valuable consideration for agreeing to the covenants in this clause 11.
12.1 The Customer indemnifies RunGopher (including its directors, officers, employees, agents and other representatives) against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which RunGopher pay, suffer, incur or may be liable for, as a result of:
a) any use by the Customer or any third party of, or access by the Customer or any third party to, any Service provided by RunGopher to the Customer; and/or
b) any breach by the Customer of this Agreement or any applicable legislation, except to the extent that such losses are caused or contributed to by RunGopher.
13. Warranties and Limitation of Liability
13.1 To the extent permitted by law, RunGopher excludes all warranties and conditions that would otherwise be implied into this Agreement by law. Where RunGopher is not able to exclude such a warranty or condition it is included in this Agreement and RunGopher limits, to the extent permitted by law, its liability for a breach of that warranty or condition to one or more of the following at its option:
a) re-supply of the Services;
b) correction of the Services;
c) payment of the cost of having the Services supplied again.
13.2 Notwithstanding any other provision of this Agreement, RunGopher shall have no liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the Customer for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect or consequential loss. Otherwise, RunGopher’s maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the Customer is limited to the total of all Fees received by RunGopher under this Agreement.
14. Dispute Resolution
14.1 Subject to clause 14.2, prior to commencing any action in any court or any action in any other form of judicial of quasi-judicial forum the parties must comply with the requirements of this clause.
14.2 Nothing in this clause prevents either party seeking urgent interlocutory relief from a court in relation to any breach or potential breach of an obligation of confidentiality or in relation to any other matter of urgency.
14.3 Where there is a dispute between the parties in respect of a matter the subject of this Agreement:
a) each party must cause a senior representative with authority to settle the dispute to be available and to meet with the other party’s senior representative with a view to resolving the dispute.
b) If a dispute remains unresolved for a period of fourteen (14) days the parties must agree in good faith to resolve the dispute by attending a mediation conducted in accordance with the rules of the Australian Commercial Disputes Centre. If the parties cannot agree on the appointment of a mediator, the mediator shall be appointed by the President for the time being of the Law Society of New South Wales. The costs of the mediator shall be shared in equal proportions.
c) If a dispute remains unresolved after mediation conducted in good faith each party is released from the requirements of clause 14.1 in relation to that dispute.
15.1 This Agreement constitutes the entire understanding and agreement between the parties with respect to its subject matter. All previous negotiations and representations (express or implied) are excluded to the maximum extent permissible at law or in equity.
15.2 Except as set out in this Agreement to the contrary, nothing in this Agreement:
a) gives either party the ability to act or incur liability on behalf of the other party; or
b) creates a relationship of partners, joint venturers, principal and agent or employee and employer between the parties.
15.3 A waiver of rights under this Agreement can only occur in writing signed by the party granting the waiver. Except to the extent set out in the waiver, a waiver is only effective in relation to the specific facts and rights set out in it and does not operate to waive any other rights or to waive the same rights in respect of different facts or circumstances.
15.4 Where a part of this Agreement is held by a court to be illegal or otherwise unenforceable, that part is severed and the balance of this Agreement will continue unaffected.
15.5 Notices under this Agreement must be given in writing.
15.6 The parties’ obligations under this agreement are suspended to the extent that RunGopher is unable to comply with its obligations under this agreement as a result of a cause beyond the reasonable control of RunGopher. RunGopher will promptly notify the Customer upon such an event occurring. The actions of telecommunications and other utilities, hosting providers and other subcontractors to RunGopher are outside the reasonable control of RunGopher for the purposes of this Agreement.
15.7 RunGopher may at any time assign the whole or any part of the Agreement to a related body corporate or a third party without the Customer’s consent.
15.8 The Customer may assign or deal with its rights or obligations under the Agreement only with RunGopher’s prior written consent, which RunGopher will not unreasonably withhold.
15.9 No provision of this Agreement may be construed against a party because that party drafted that term.
15.10 This contract is governed by the laws in force in the State of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that State.