Vetter

Beta Program Participation Terms And Conditions

This Agreement:

By ticking the relevant tickbox, the Client and Vetter Pty Ltd ABN 46 673 259 919 (Vetter) agree to the terms of this Beta Program Participation Terms and Conditions (the agreement).
Term:
1. This agreement commences on the Commencement Date and will continue for [30] days unless renewed in accordance with clause 2.1(b) or terminated earlier in accordance with clause 15 (the Term).
2. At any time prior to the expiry of the Term, the parties may agree in writing to extend the term of this agreement for an additional period (Renewal Term), in which case the operation of this agreement will be extended for the Renewal Term.
3. The parties must negotiate in good faith when determining whether to extend the term of this agreement for a Renewal Term.
The Solution:
1. Scope of solution
  
  Vetter will provide the Software and the Support Services set out in this agreement (together, the Solution).
2. New modifications
  1. Vetter may from time to time, without being under any obligation to do so and in its absolute discretion, provide New Modifications to the Solution.
  2. The Client must facilitate the installation of the New Modifications as instructed by Vetter.
  3. All New Modifications are licensed by Vetter to the Client upon the same terms as this agreement.
  4. All New Modifications will be taken to be part of the original licensed copy of the Software and subject to this agreement.
3. Support services
  1. Vetter will be available to contact for technical difficulties relating to the Software by phone and email between 9 am – 5 pm on Business Days (Support Services).
  2. The Client acknowledges and agrees:
    1. Vetter will take reasonable steps to provide Support Services where necessary during the Term;
    2. the Client must first endeavour to resolve any issues with the Software internally and Vetter will not assist with issues that are beyond its reasonable control;
    3. the Client is responsible for all internal administration and managing access, including storing back-up passwords and assisting its Personnel to access and use the Software (if relevant); and
    4. the Client will not have any claim for delay in accessing the Software due to any failure or delay in Support Services.
Third party software:
1. The Client acknowledges and agrees that issues can arise with transferring data to software and between software, and when integrating software with other software. Vetter cannot guarantee the integration processes to Third Party Software will be free from errors, defects or delay. Vetter will not be liable for any delay, loss or damage, including any data loss or consequential loss arising from any error of data or transmission, suffered by the Client in connection with Third Party Software. All liability of Vetter for Third Party Software is excluded and limited to the maximum extent permitted by law.
2. Vetter makes no guarantee that any integration of the Software with any Third Party Software will be successful. Any failure of an integration, whether caused or contributed to by Vetter or a third party, will not be the responsibility of Vetter or a breach of this agreement. The Client releases Vetter from any claims for losses arising in connection with the failure of any integration.
Client’s obligations
1. Client Acknowledgements:
  
  The Client acknowledges and agrees that:
  1. the Solution is in “beta stage” and as such Vetter is unable to guarantee the completeness, accuracy, currency, reliability or availability of the Software nor that there will be no loss of corruption of Client Data; and
  2. as consideration for Vetter providing the Solution, Vetter asks that the Client actively provides ongoing feedback relating to any functional flaws, errors, anomalies, problems or bugs in the Solution and the Client’s usage and experience of the Solution.
2. Use of solution:
  1. The Client must, and must ensure that all Users, comply with this agreement at all times. The Client acknowledges and agrees that it is responsible for all acts or omission of its Users and that Vetter will have no liability for any act of a User for damage, loss or expense suffered by a User in connection with the use of the Solution and will indemnify Vetter for any such damage, loss or expense.
  2. The Client must not, and must not encourage or permit any User or any third party to, without Vetter’s prior written approval:
    1. make copies of the Solution or Documentation;
    2. adapt, modify or tamper in any way with the Solution or Documentation;
    3. remove or alter any copyright, trade mark or other notice on or forming part of the Solution or Documentation;
    4. create derivative works from or translate the Solution or Documentation;
    5. publish or otherwise communicate the Solution or Documentation to the public, including by making it available online or sharing it with third parties;
    6. sell, loan, transfer, sub-license, hire or otherwise dispose of the Solution or Documentation to any third party (other than sub-licensing to a Licensed User);
    7. decompile or reverse engineer the Solution or any part of it, or otherwise attempt to derive its source code;
    8. attempt to circumvent any technological protection mechanism or other security feature of the Solution; or
    9. permit any person other than Licensed Users to use or access the Solution or Documentation.
3. Provide information
  
  The Client must provide Vetter with all documentation, information and assistance reasonably required by Vetter to provide the Solution.
4. Compliance with laws
  
  The Client agrees that it will not, by receiving or requesting the Solution:
  1. breach any applicable laws, rules or regulations (including any applicable privacy laws); or
  2. infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.
User obligations
The Client agrees, and must ensure that all Users agree:
1. to comply with each of the Client’s obligations in this agreement;
2. that to access the Software it will need to provide personal information and create an account;
3. to not share its Software account information with any other person and that any use of its account by any other person is strictly prohibited. The Client or User must immediately notify Vetter of any unauthorised use of its account, password or email, or any other breach or potential breach of the Solution’s security;
4. to not use the Solution for any purpose other than for the purpose for which it was designed, including not using the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
5. not to act in any way that may harm Vetter’s reputation or that of associated or interested parties or do anything at all contrary to the interests of Vetter or the Solution;
6. not to make any automated use of the Solution and not to copy, reproduce, translate, adapt, vary or modify the Solution without Vetter’s express written consent;
7. that Vetter may change any features of the Solution at any time on notice to the Client; and
8. that information given to the Client through the Software, by Vetter or another User, is general in nature and Vetter takes no responsibility for anything caused by any actions the Client takes in reliance on that information.
Client Acknowledgement
The Client acknowledges that the Solution is provided for the Client’s convenience and as a tool only, and that Vetter does not make any guarantees in regards to Users achieving vocational compliance requirements.
Intellectual property and data
1. Software content intellectual property
  1. (Vetter ownership) Vetter retains ownership of all materials provided to the Client throughout the course of the Term (including the Documentation, text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software)(Software Content) and reserves all rights in any Intellectual Property Rights owned or licensed by Vetter not expressly granted to the Client.
  2. (Licence to the Client) The Client is granted a licence to the Software Content, for the Maximum Number of Solution Uses, and the Client may make a temporary electronic copy of all or part of any materials provided to it for the sole purpose of viewing them and using them for the purposes of the Software. The Client must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any Software Content without prior written consent from Vetter or as otherwise permitted by law.
  3. (Developed IP) Any Developed IP will be solely and exclusively owned by Vetter.
  4. (Feedback) Any feedback, ideas, modifications, suggestions or improvements with respect to the Software the Client provides will be the property of Vetter on and from its creation and is Confidential Information to be owned by Vetter.
2. Client data
  1. The Client retains ownership of all Client Data.
  2. The Client grants to Vetter (and its Personnel) a perpetual, non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use Client Data to the extent reasonably required to provide and improve the Solution, even following expiry or termination of this agreement.
  3. The Client is responsible for ensuring that in using the Solution it shares Client Data only with intended recipients.
  4. The Client:
    1. warrants that Vetter’s use of Client Data will not infringe any third-party Intellectual Property Rights; and
    2. indemnifies Vetter from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
3. Accreditations
  
  Unless otherwise agreed in writing:
  1. all displays or publications of any deliverables provided to the Client as part of the Solution must, if requested by Vetter, bear an accreditation and/or a copyright notice including Vetter’s name in the form, size and location as directed by Vetter; and
  2. Vetter retains the right to describe the Solution and reproduce, publish and display any deliverable the Client receives from the Solution in Vetter’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Solution and any deliverables connection with such uses. The Client authorises Vetter to state that the Client is a Client of Vetter on Vetter’s marketing material including its website.
Confidentiality and restraint
1. Confidentiality
  1. Except as contemplated by this agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
  2. This clause does not apply to:
    1. information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
    2. information required to be disclosed by any law; or
    3. information disclosed by Vetter to its subcontractors, employees or agents for the purposes of providing the Solution or its obligations under this agreement.
2. Restraint
  
  For the duration of this agreement, the Client must not employ or engage (or be knowingly involved in its Personnel employing or engaging) any officers or employees of Vetter with which the Client had contact during the course of the Term.
Privacy
The Client agrees to Vetter handling personal information in accordance with their privacy policy which can be found at [insert URL] and is incorporated by reference to this agreement.
Security breach
1. The Client acknowledges and agrees that there are inherent risks to data security when using the Software and any Third Party Software, as well as various other opportunities for risks, beyond Vetter’s control, to eventuate in relation to the Client Data.
2. While every precaution within Vetter’s control will be taken to ensure security of the Client Data, Vetter cannot guarantee that security issues will not arise. Many such issues are outside of Vetter’s reasonable control as the Software relies on User security settings and Third Party Software security controls. Vetter does not guarantee the security of the Client Data.
3. Vetter will notify the Client promptly after Vetter learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (including Client Data) (collectively, Security Breaches).
4. Vetter will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its Personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
5. Vetter will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach.
6. The Client must take all steps necessary to ensure that data integrity is maintained if its IT System crashes, suffers a power surge or is otherwise compromised as a result of a Security Breach, including by immediately notifying Vetter and following any directions given by Vetter.
Subcontracting
Vetter may subcontract any aspect of providing the Solution and the Client hereby consents to such subcontracting.
Warranties and limitations
1. Vetter warranties
  1. Vetter warrants that:
    1. during the Term, the Software will perform substantially in accordance with the intended purpose;
    2. to its knowledge, the use of the Solution in accordance with this agreement will not infringe the Intellectual Property Rights of any third party; and
    3. the Support Services will be fit for purpose and provided by Personnel who have expertise in the provision of those services.
2. Correction of defects
  1. Vetter will correct any errors, bugs or defects in the Software which arise during the Term and which are notified to Vetter by the Client unless the errors, bugs or defects:
    1. result from the interaction of the Software with any other solution or any computer hardware or services not approved in writing by Vetter;
    2. result from any misuse of the Software; or
    3. result from the use of the Software by the Client other than in accordance with this agreement or the Documentation.
  2. The Client agrees to provide Vetter and its Personnel reasonable access to the Client’s premises, Personnel, IT System and the Software to assist Vetter in correcting any defects in the Software.
3. Service limitations
  
  (Service Limitations) The Solution is made available to the Client strictly on an ‘as is’ basis. Without limitation, the Client acknowledges and agrees that Vetter cannot guarantee that:
  1. the Solution will be free from errors or defects;
  2. the Solution will be accessible at all times (though Vetter will strive for a 99% uptime on the Solution’s availability);
  3. messages sent through the Solution will be delivered promptly, or delivered at all;
  4. information received or supplied through the Solution will be secure or confidential; or
  5. any information provided through the Solution is accurate or true.
4. Exclusion of other warranties
  1. To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.
  2. Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL).
Limitation of liability and indemnity
1. (Specific limitation of liability) Vetter does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to Client Data or information, computer systems, mobile phones or other electronic devices arising in connection with use of the Software. The Client must take its own precautions to ensure that the processes which the Client or its Users employs for accessing the Software does not expose the Client to the risk of data loss, hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
2. (General limitation of liability) To the maximum extent permitted by law, Vetter’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement is totally excluded.
3. (Indemnity) Each party agrees to indemnify the other party and its employees, contractors and agents (“those indemnified”) from and against any loss or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the other party’s employees’, clients’, contractors’ or agents’:
  1. breach of any third party intellectual property rights; or
  2. negligent, wilful, fraudulent or criminal act or omission.
4. (Consequential loss) Vetter will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Vetter, except to the extent this liability cannot be excluded under the ACL or any other applicable law.
Termination
1. Termination for convenience
  
  Either party may terminate this agreement for convenience at any time by providing written notice to the other party.
2. Termination for cause
  
  Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party is in breach of this agreement and either:
  1. fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
  2. that breach is not capable of remedy.
3. Effect of termination
  
  Upon termination or expiry of the Term of this agreement:
  1. the Client’s license granted in clause 3.3 to the Software is revoked;
  2. the Client must ensure that all copies of the Software (including any backup copies) are removed from its IT System;
  3. the Client must return the licensed copies of the Software and the Documentation and every copy of them to Vetter or deal with them as directed by Vetter;
  4. unless terminated under clause 15.2, the parties will arrange to conduct a “feedback session” within a reasonable time for the Client to provide Vetter feedback on its use and experience with the Solution. Such feedback session may be conducted in-person or electronically;
  5. each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
  6. no rights, liabilities or remedies of any party will be invalidated by the termination.
4. Survival
  
  Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
Dispute resolution
1. The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
2. If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
3. The parties acknowledge that compliance with this clause 16 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
  1. in the case of applications for urgent interlocutory relief; or
  2. a breach by another party of this clause
Notices
1. A notice or other communication to a party under this agreement must be:
  1. in writing and in English; and
  2. delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
2. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
  1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
  2. when replied to by the other party, whichever is earlier.
Force majeure
1. If a party becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), that party must give to the other party prompt written notice of:
  1. reasonable details of the Force Majeure; and
  2. so far as is known, the probable extent to which that party will be unable to perform or be delayed in performing its obligation.
2. Subject to compliance with clause 18.1(a), the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.
3. The affected party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
General
1. Governing law and jurisdiction
  
  This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
2. Amendments
  
  This agreement may only be amended in accordance with a written agreement between the parties.
3. Waiver
  
  No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
4. Severance
  
  Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
5. Joint and several liability
  
  An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
6. Assignment
  
  A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
7. Counterparts
  
  This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
8. Costs
  
  Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
9. Entire agreement
  
  This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

Definitions and interpretation

In this agreement, the following rules of interpretation apply:
1. (singular and plural) words in the singular includes the plural (and vice versa),
2. (gender) words indicating a gender includes the corresponding words of any other gender;
3. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
4. (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
5. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
6. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement;
7. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
8. (currency) a reference to “$” or “dollar” is to Australian currency;
9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
10. (includes) the word “includes” and similar words in any form is not a word of limitation; and
11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

In this agreement, capitalised terms have the meaning given to them defined in the body of the agreement or as follows.

Term	Definition
Business Days	means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Victoria, Australia.
Client	means the individual, company or entity engaging Vetter Pty Ltd ABN 46 673 259 919 to provide the Solution, and that has agreed to enter into these terms and conditions by ticking the relevant tickbox.
Commencement Date	means the date on which the Client enters into this agreement by ticking a box agreeing to these terms and conditions.
Confidential Information	means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
Client Data	means files, data or any other information, which is uploaded or inserted to the Solution by the Client or its Licensed Users.
Developed IP	means any materials produced by Vetter in the course of providing the Solution, including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials, and including any New Modifications, or other enhancements to the Software, including if such enhancements or modifications were requested by the Client.
Documentation	means all manuals, help files and other documents supplied by Vetter to the Client relating to the Solution, whether in electronic or hardcopy form.
Intellectual Property Rights	means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
IT System	means the Client’s hardware, software, data communications lines, network and telecommunications equipment and internet-related information technology infrastructure, including computers, laptops and phones.
Licensed User	means a user of the Solution and Documentation who has been validly granted access to the Software and Documentation by the Client in accordance with clause 3.3.
New Modifications	means any upgraded, improved, modified or new versions of the Solution made by Vetter after the Commencement Date (including any customisations made at the Client’s request).
Personnel	means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
Software	means the Vetter software platform provided by Vetter Pty Ltd ABN 46 673 259 919.
Solution	has the meaning given in clause 3.1.
Term	has the meaning given in clause 2.
Third Party Software	means any third party software or application, including (without limitation), Microsoft Access.
Support Services	has the meaning given in clause 3.4.
Term	has the meaning given in clause 1 of this agreement.
User	means the Client’s Licensed Users, its Personnel, and any other third party who is granted access to the Software or Documentation by the Client, its Licensed Users or its Personnel.

Beta Program Participation Terms And Conditions

Scope of solution

New modifications

Support services

Client Acknowledgements:

Use of solution:

Provide information

Compliance with laws

Software content intellectual property

Client data

Accreditations

Confidentiality

Restraint

Vetter warranties

Correction of defects

Service limitations

Exclusion of other warranties

Termination for convenience

Termination for cause

Effect of termination

Survival

Governing law and jurisdiction

Amendments

Waiver

Severance

Joint and several liability

Assignment

Counterparts

Costs

Entire agreement