Software Licence Agreement – Terms & Conditions
Permission to use HowNow Online is conditional upon You, the Customer, agreeing to the terms set out in the Business Fitness Master Services Agreement, which can be found here. You must read this agreement carefully. By clicking the “accept” button, registering for an account or using all or any portion of HowNow Online, you accept all the terms and conditions of this Agreement. If You do not agree with these terms or do not have the authority to agree to them on behalf of your organisation, you must not register for an account with Business Fitness and must not use HowNow Online.
A. Business Fitness Pty Ltd ACN 098 580 708 (Business Fitness) has the right to licence HowNow and provide services to customers relating to HowNow.
B. The Customer wishes to utilise HowNow and engage Business Fitness to provide these services.
C. This Agreement records the arrangements between Business Fitness and the Customer.
The Terms and Conditions of use are as follows:
1.1 Grant of Licence
In consideration of the payment of Fees by the Customer, and subject to the terms of this Agreement, Business Fitness grants to the Customer a non-exclusive, non-transferrable licence to use HowNow on a computer, device or network used by the Customer.
1.2 Authorised Use
(a) The Customer agrees that only Authorised Users may access and use HowNow.
(b) The Customer must ensure that Authorised Users access and use HowNow in accordance with this Agreement.
(c) The Customer and Authorised Users must only use HowNow for the purposes of operating the Customer’s business, or in the case of an individual for their own use.
(d) To the extent that HowNow is accessible through a website, such access is subject to the terms and conditions of use that appear on that website and any click and accept end user licence terms, together with privacy and acceptable use standards.
(e) An Authorised User may access the HowNow website utilising a Logon ID allocated by the Customer to the Authorised User. The Customer:
(i) may not cause a Logon ID to be utilised by more than one Authorised User at any one time;
(ii) may cancel an Authorised User’s Logon ID at any time and that Logon ID may then be allocated to another Authorised User.
(iii) Must notify Business Fitness immediately of any unauthorised use of the Customer’s passwords or any other breach of security. Business Fitness will reset the passwords impacted.
(f) The Customer must ensure that an Authorised User does not disclose their Logon ID to anyone else.
(g) Business Fitness may cancel any Logon ID at any time without providing reasons or limit the number of available Login IDs available to the Customer based on the Fee structure adopted.
Upon the reasonable request of Business Fitness, the Customer will provide Business Fitness with all information and co-operation reasonably necessary to enable Business Fitness to perform its obligations under this Agreement.
The Customer must not:
(a) use HowNow in any way that could damage the reputation of Business Fitness or the goodwill or other rights associated with HowNow;
(b) permit any third party to use HowNow other than as set out in this Agreement;
(c) reproduce any part of HowNow for sale or incorporation in any product or service intended for sale or supply to third parties;
(d) except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent Business Fitness restraining the Customer from doing so:
(i) reproduce, make error corrections to or otherwise modify or adapt HowNow or create any derivative works based upon HowNow;
(ii) de-compile, disassemble or otherwise reverse engineer HowNow or permit any third party to do so.
(e) The Customer must ensure that all usernames and passwords required to access HowNow are kept secure and confidential. The Customer must immediately notify Business Fitness of any unauthorised use of the Customer’s passwords or any other breach of security and Business Fitness will reset the Customer’s password and the Customer must take all other actions that Business Fitness reasonably deems necessary to maintain or enhance the security of Business Fitness' computing systems and networks and the Customer’s access to HowNow.
(f) When accessing and using HowNow, the Customer must not:
(i) attempt to undermine the security or integrity of Business Fitness' computing systems or networks or, where HowNow is hosted by a third party, that third party's computing systems and networks;
(ii) use, or misuse, the Service in any way which may impair the functionality of HowNow or the Website, or other systems used to deliver HowNow or impair the ability of any other user to use HowNow or Website;
(iii) attempt to gain unauthorised access to any materials other than those to which the Customer has been given express permission to access or to the computer system on which HowNow is hosted;
(iv) transmit, or input into the Website, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Customer Data in violation of any law (including Customer Data or other material protected by copyright or trade secrets which the Customer does not have the right to use);
(v) attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver HowNow or to operate the Website except as is strictly necessary to use either of them for normal operation;
(vi) remove or modify any program markings or any notice of proprietary rights, irrespective of whether such markings or notices are those of Business Fitness or a third party;
(vii) make any part of HowNow available in any manner to any third party for use in that third party's business operations, or otherwise sublicense, rent, assign, communicate to the public or otherwise deal (wholly or in part) with HowNow.
Business Fitness shall provide the access to HowNow through the Website, provided however that Business Fitness may, without notice, suspend all or part of any access to HowNow immediately, including where:
(a) there is a malfunction or breakdown of any of Business Fitness’ equipment or if Business Fitness is required to undertake the repair, maintenance or service of any part of HowNow;
(b) it is reasonably required to reduce or prevent fraud or interference with HowNow;
(c) Business Fitness is required to comply with an order, instruction or request of a Government Agency, or other such competent body;
(d) the Customer has failed to pay Fees that are due and payable to Business Fitness;
(e) there is a Force Majeure Event.
The Customer acknowledges and agrees that access to HowNow is reliant upon various factors outside the control of Business Fitness, including, without limitation, the Customer’s internet service provider, telecommunications provider or equipment used to access HowNow or the Website, Business Fitness’ hosting and web server and other factors which may impact upon the delivery of HowNow to the Customer via the internet. While Business Fitness shall use all reasonable endeavours to ensure the Customer has continuous access to HowNow, Business Fitness shall not be liable to the Customer or any other person for any Claim or to any other extent for Loss or damage caused by such factors.
Business Fitness may suspend access to HowNow if a Claim is made that:
(a) alleges that the continued provision of HowNow infringes the rights of any person;
(b) exposes Business Fitness to liability prosecution for an offence or liability to a statutory penalty.
In the event that access to HowNow is discontinued in accordance with clause 2.3, Business Fitness will endeavour to provide the Customer with prior written notice where it is reasonable and practicable in Business Fitness’ opinion to do so.
2.5 Notice of Maintenance
Business Fitness will use its reasonable endeavours to, except in emergency situations:
(a) provide the Customer with seven (7) days’ notice of any scheduled maintenance of HowNow; and
(b) undertake any scheduled maintenance between the hours of 7pm and 7am AEST on weekdays or on weekends.
2.6 Loss of Access
The Customer shall have no Claim against Business Fitness in respect of loss of access or functionality to HowNow referred to in this clause.
Business Fitness does not warrant that HowNow is or will be completely error free or free of Defects.
3. Intellectual Property
(a) Business Fitness warrants that, at the commencement of this Agreement, it is entitled to grant the rights in respect of HowNow subject to the terms and conditions of this Agreement.
(b) The Customer acknowledges that all Intellectual Property Rights subsisting in HowNow are either owned or licensed from third parties (as the case may be) by Business Fitness and that nothing in this Agreement has the effect of or should be construed as passing ownership of any Intellectual Property Rights of Business Fitness to any person, including the Customer.
3.2 Customer Materials
(a) Business Fitness acknowledges that all Intellectual Property Rights subsisting in the Customer Materials are either owned or licensed from third parties (as the case may be) by the Customer and that nothing in this Agreement has the effect of or should be construed as passing ownership of any Intellectual Property Rights in the Customer Material to any person.
(b) The Customer hereby grants to Business Fitness a perpetual, royalty free, non-exclusive, non-transferable licence to use, operate, modify, support and maintain the Customer Materials in order to support HowNow.
(c) The Customer acknowledges that Business Fitness retains ownership of all Intellectual Property Rights of HowNow created by or for Business Fitness whether before or after the date of this Agreement and the Customer hereby irrevocably assigns any Intellectual Property Rights that may vest in the Customer, by operation of law or otherwise.
3.3 No Exclusivity
The Customer acknowledges and agrees that Business Fitness may supply products or services similar to or the same as HowNow to its customers or other third parties and the Customer may not restrict Business Fitness’ use of HowNow. In using such material, Business Fitness must ensure:
(a) the Customer is not identifiable;
(b) no personal information originating from the Customer about identifiable individuals is contained in that material;
(c) the relevant material does not contain Confidential Information of the Customer.
3.4 Continued Development
(a)The Customer consents to Business Fitness soliciting comments, information, requests, data, ideas, enhancement requests, recommendations, description of processes, or other information concerning HowNow from Authorised Users or the Customer (Feedback).
(b)Business Fitness owns all Intellectual Property Rights in any Feedback and may use such Feedback for purposes related to HowNow or the carrying out of services generally in its business activities without further approval or acknowledgement, and the Customer hereby assigns to Business Fitness any Intellectual Property Rights in any such Feedback provided always that Business Fitness complies with the general obligations in clause 3.3.
4. Customer Data
4.1 Provision of Information
Through the usage of HowNow, the Customer will provide and have stored on Business Fitness’ servers, Customer Data. Customer Data may be stored on servers owned by third parties pursuant to arrangements entered into by Business Fitness.
Business Fitness shall use all reasonable endeavours to ensure that Business Fitness’ servants, agents and employees provide a secure environment for any Customer Data held on its systems as a result of the use of HowNow. The Customer however acknowledges that no information which is available on the internet is completely secure and agrees that Business Fitness will not be liable for any loss or damage or to any extent should such security measures be overcome or breached and the Customer hereby indemnifies Business Fitness in respect of any such Claims.
4.3 Third Party Infringement
The Customer shall not knowingly do any act or thing in relation to data which would infringe any party’s copyright or intellectual property rights and shall be responsible for obtaining consent, approval or license from the holders of any intellectual property rights required to enable the Customer to deal with any relevant data or to do any act or thing in relation to those intellectual property rights.
4.4 Use of Customer Data
The Customer grants and Business Fitness reserves the right to use, test, manipulate or put to any other application the Customer Data for the purpose of improving or marketing HowNow. Business Fitness will not use the Customer Data for any other purpose without the consent in writing of the Customer.
In making use of Customer Data in accordance with clause 4.4, Business Fitness will use all reasonable endeavours to preserve the confidentiality of the Customer Data, including the amendment or alteration of information to cause it to be unidentifiable.
4.6 Other Customer Data
The Customer acknowledges that through the use of HowNow it may exchange or otherwise receive or disclose Customer Data to and from other customers. The Customer acknowledges and agrees that Business Fitness has no control over any or all such information and makes no warranty or guarantee as to its accuracy or otherwise appropriateness of the data and all such data is used completely at the Customer’s own risk.
4.7 How we will keep Information and Data Secure
Geo-redundant storage of your files is a basic feature of your account. This means that there are multiple copies of your files within the Microsoft Azure infrastructure. These copies are replicated within the main data centre and again within secondary data centres hundreds of miles away.
Whenever your data is in transit between you and us, everything is encrypted, and sent using HTTPS 256bit AES encryption in transit and Microsoft SSE encryption at rest. This is the same for our server-to-server communications, helping to ensure that your data is kept as your data.
As data is transferred over the internet, which is not in itself a secure environment, we cannot give absolute assurance that your information will always be secured. While Business Fitness utilises up-to-date techniques and processes, which meet current government requirements to protect personal information from misuse, loss and unauthorised access, modification or disclosure, transmission of personal information over the interest, is at your own risk and Business Fitness does not take responsibility for any loss or misuse of data.
Business Fitness believes that your password should remain your password and not be known to others, unless you choose to disclose it. For that reason Business Fitness does not store your passwords in a readable format. They are hashed at the point of setting and we only store the resulting hash. This is a one-way process, unlike encryption, which means they can never be converted to a readable format.
The only people who are permitted to access personal information are those employees or contractors who need personal information to do their jobs. All employees and contractors are contractually bound by the confidentially agreements in place on how personal information must be treated.
Business Fitness takes all reasonable steps to ensure that all personal information we hold is secure from any unauthorised access, misuse or disclosure, however Business Fitness cannot guarantee that unauthorised access will not occur.
4.8 Transfer of Data with Third Party Applications
Business Fitness allows connections with third party applications. Business Fitness has no control over the privacy practices of other organisations and take no responsibility for the data coming to and from these applications. It is your responsibility to review and understand how these organisations handle personal information.
5. Fees and Payment
Fees means the monthly fee payable by the Customer in accordance with the fee schedule set out on the Website which Business Fitness may change from time to time, providing at least one month’s notice to the Customer. The Customer must pay to Business Fitness, the Fees on the due date.
(a) An invoice will be issued for the Fee each month, commencing on the day the Customer first obtains access to the system.
(b) Fees will be charged in advance.
(c) All Fees will be billed to the credit card or payment account designated by the Customer.
(d) The Customer authorises Business Fitness to charge for HowNow using your payment method, each calendar month.
(e) The Customer must keep all information regarding their billing account current. If the Customer wishes to designate a different credit card or payment account or if there is a change in credit card or payment account status, the Customer can access and modify their billing account information on the HowNow website.
(f) All payments made by the Customer are non-refundable.
5.3 GST and other amounts
Unless otherwise expressly stated, the Fees are inclusive of GST, other taxes, duties and charges imposed or levied in Australia or overseas in connection with the License, such amounts being payable by the Customer. Without limiting the foregoing, the Customer shall be liable for any new taxes, duties or charges imposed subsequent to the commencement of this Agreement.
Should the Customer fail to pay the Fees in accordance with clause 5.1 or if Business Fitness is unable to successfully charge the Customer’s credit card or payment account for Fees due, Business Fitness reserves the right to:
(a) Discontinue or suspend the Customer’s access to HowNow;
(b) Alter the functionality or usability of HowNow for the Customer; or
(c) Otherwise limit the Customer’s access to HowNow;
and may charge additional fees for the reinstatement of such access or functionality.
6.1 During Trial Period
When the Customer first signs-up to access HowNow, the Customer will be given a trial period in which to evaluate HowNow, with no obligation to continue to use HowNow. During this period the Customer may terminate at any time and delete the Account.
6.2 Termination by Customer
At the end of each monthly billing period, this Agreement will automatically continue for another month provided the Customer continues to pay the Fees when due, unless the Customer terminates this Agreement by giving at least 30 days written notice to Business Fitness prior to the end of the monthly billing period. Business Fitness will not refund any remaining prepaid period where the Customer has prepaid the Fee for access to HowNow.
6.3 Termination by Business Fitness
Business Fitness may terminate this Agreement in whole or in part if:
(a) the Customer fails to pay any invoice issued by Business Fitness in accordance with the terms of any such invoice;
(b) the Customer or an Authorised User commits a material breach of this Agreement which is capable of being remedied and does not remedy that breach within 14 days after receiving written notice of the breach from Business Fitness; or
(c) the Customer or an Authorised User commits a material breach of this Agreement which is not capable of being remedied;
(d) the Customer becomes Insolvent; or
(e) if the Customer or an Authorised User infringes Business Fitness’ Intellectual Property Rights,
or in any event upon twenty one (21) days’ notice.
6.4 Preservation of Rights
Termination of this Agreement for any reason (including but not limited to termination pursuant to any provision of this clause 6) will not extinguish or otherwise affect:
(a) any rights of either party against the other which:
(i) accrued prior to the time of the termination; or
(ii) otherwise relate to or may arise at any future time from any breach or non-observance of obligations under this Agreement which arose prior to the time of the termination; or
(b)the provisions of this Agreement which by their nature survive termination.
6.5 Effect of termination
The termination of this Agreement will not affect any remedy of any party with respect to any breach of this Agreement. The parties agree that such rights and remedies will survive the termination of this Agreement.
6.6 Return of Data
Business Fitness will return all Customer Data to the Customer, if a request to do so is made within 90 days after the termination of this Agreement. The data will be returned within 30 days of the request being made, in a format deemed suitable by Business Fitness. If no request for return of data is made within 90 days, the data will be destroyed.
6.7 Any personal information Business Fitness holds will be maintained in order to comply with legislative and professional requirements, after which time the information will be securely destroyed. If you cancel your use of HowNow Online, it is your responsibility to ensure you have transferred all documents to another location, prior to the cancellation. Business Fitness can assist with this process. Once your subscription to the service has been cancelled, documents will be stored for a period time, after which time they will be deleted.
Business Fitness warrants that it:
(a) is able to lawfully grant the licence contemplated by this Agreement; and
(b) will develop, provide and deliver HowNow with due care and skill; and
(c) shall provide and maintain help files and other appropriate user documentation.
8. Liability and Indemnity
8.1 Implied terms and warranties excluded
(a) The provisions of various laws, statutes, rules or regulations in force from time to time might imply certain conditions, warranties, and obligations in this Agreement. All such conditions, warranties, and obligations are hereby expressly excluded from having any application to this Agreement, except to the extent that it is not lawful to do so.
(b) Each party’s liabilities under any condition, warranty, or obligation implied by law in this Agreement that cannot be excluded is limited:
(i)In the case of goods, to (at the supplying party’s election):
(A) the replacement of the goods, or the supply of equivalent goods;
(B) the repair of the goods;
(C) paying the cost of replacing the goods or of acquiring equivalent goods; or
(D) paying the cost of having the goods replaced; and
(ii) in the case of services, to (at the supplying party’s election):
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
8.2 Indirect losses excluded
In no event will any party be liable to another for:
(a)a loss of profits, business, business opportunity, revenue, goodwill or anticipated savings; or
(b)indirect or consequential Loss or damage.
8.3 Cap on Liability
Other than in relation to an obligation on the Customer to pay Fees to Business Fitness, a party’s liability to another party for all Claims made by that party under or in connection with this Agreement is, in aggregate, capped at the amount paid by the Customer to Business Fitness under this Agreement.
9. Confidentiality, Privacy and Security
9.1 Treatment of Confidential Information
Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party (a Discloser) undertakes to keep the Confidential Information of the other party (a Recipient) secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
9.2 Use of Confidential Information
A Recipient may only use or reproduce the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under this Agreement.
9.3 Disclosure by Recipient
A Recipient disclosing information under this Agreement must use all reasonable endeavours to ensure that persons receiving Confidential Information from it do not disclose the information except in the circumstances permitted under this Agreement.
9.4 Return of Confidential Information
At the request of a Discloser, a Recipient must:
(a) return to the Discloser all Confidential Information of the Discloser; or
(b) destroy the Discloser‘s Confidential Information and certify to the Discloser that it has been destroyed.
If, as a result of this Agreement, a party is able to access any personal information about identifiable individuals, then that party:
(a) must comply with the Privacy Act 1988 (Cth) and all other applicable privacy laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information, as if it were regulated by these laws;
(b) must comply with any privacy code or policy which has been adopted by the Customer (if provided by the Customer to Business Fitness) as if it were bound by that code or policy;
(c) must take all reasonable measures to ensure that such information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to it;
(d) must immediately notify the other party upon it becoming aware of a breach of this agreement by itself or any representative, employee or officer;
(e) must co-operate with the other party in the resolution of any complaint under or relating to, any of the laws, codes or policies referred to in (a) and (b) above.
Nothing in this Agreement prohibits the use or disclosure of any Confidential Information to the extent that the Recipient can demonstrate that:
(a) the information is received by the Recipient from a third party who is not under an obligation of confidence in relation to such information;
(b) the information is generally and publicly available other than as a result of a breach of confidence by the person disclosing or receiving the information;
(c) the information is independently developed by the Recipient’s Personnel who do not have access to any of the Discloser’s Confidential Information; or
(d) the Information was lawfully known to the Recipient prior to receipt of the information from the Discloser.
9.7 Damage and other Remedies
Each party acknowledges that a breach of this clause 9 may cause the other party irreparable damage for which monetary damages may not be an adequate remedy. Accordingly, in addition to other remedies that may be available, each party may seek and obtain injunctive relief against such a breach or threatened breach.
10. Customer Representations and Warranties
The Customer represents and warrants to Business Fitness (except as expressly disclosed in this Agreement) each of the following statements insofar as they are applicable to the Customer is true and correct:
(a) if it is a corporation or trust it has been duly incorporated or created as the case may be and is validly existing under the laws of the place of its incorporation or creation;
(b) it has the power to enter into and perform its obligations under this Agreement, to carry out the transactions contemplated by this Agreement and to carry on its business as now conducted or contemplated;
(c) it has taken all necessary action to authorise the entry into and performance of this Agreement and to carry out the transactions contemplated by this Agreement;
(d) this Agreement creates valid and binding obligations enforceable in accordance with their terms, subject to any necessary stamping and registration;
(e) the execution and performance by it of this Agreement and each transaction contemplated under this Agreement did not and will not violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a Government Agency;
(ii) its constituent documents; or
(iii) any other document or agreement which is binding on it or its assets; and
(iv) it has had sufficient opportunity to seek independent legal advice regarding this Agreement and all surrounding matters.
11. Dispute Resolution
11.1 Dispute Resolution Process
(a) The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this Agreement.
(b) A party may give the other party a notice of dispute in connection with this Agreement.
(c) Any dispute shall be referred:
(i) initially to the Customer’s representative and Business Fitness’ representative, who will endeavour to resolve the dispute within five (5) Business Days of the giving of the notice; and
(ii) if the Customer’s representative and Business Fitness’ representative do not resolve the dispute within the time stated above, to a member of the Executive Committee of the Customer and a director of Business Fitness, who will endeavour to resolve the dispute within a further five (5) Business Days or such other period as is agreed by the parties.
(d) If after a period of 20 Business Days after delivery of a dispute notice under clause (b), the parties have not been able to resolve or agree on a process to resolve (whether by mediation, arbitration, alternative dispute resolution or otherwise) a dispute, the dispute shall be referred to mediation. Either party may at any time terminate the mediation in relation to that dispute.
(e) A party may not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless:
(i) the dispute has first been referred for resolution in accordance with the dispute resolution procedure set out in this clause 11; and
(ii) a notice terminating any mediation commenced under clause (d) has been issued by either party in accordance with that clause (d).
(f) If in the course of the dispute resolution procedure set out in clause 11, the parties agree to refer a dispute for resolution by an agreed process, neither party will oppose any application for a stay of any legal proceedings in respect of that dispute pending the completion of that agreed process.
11.2 Obligations continue during dispute resolution process
Until a dispute is resolved, whether by agreement between the parties or by a court order, the parties are obliged to continue to perform their obligations under this Agreement.
12. Assignment and Subcontracting
12.1 By Business Fitness
Business Fitness may assign or otherwise transfer the benefit of all or any part of this Agreement or its rights under this Agreement to any other person or entity without the prior written consent of the Customer.
12.2 By the Customer
The Customer must not assign this Agreement or its rights under this Agreement without the prior written consent of Business Fitness. Any attempted assignment without Business Fitness’ consent is void.
(a)Business Fitness may subcontract the performance of any of its obligations under this Agreement.
(b)Business Fitness must ensure that any subcontract entered into by Business Fitness is consistent with the provisions of this Agreement relating to confidentiality.
13. Force Majeure Events
(a)If a Force Majeure Event occurs, the party affected (Affected Party) must give written notice to the other party of particulars of the Force Majeure Event and the extent to which the Affected Party is unable to carry out its obligations.
(b)If the Affected Party provides the notice referred to above:
(i)the obligations of the Affected Party will be suspended from the time the notice is received by the other party until the Affected Party is no longer prevented from or delayed in complying with those obligations by the Force Majeure Event; and
(ii)the Affected Party must take reasonable steps to remove or mitigate the relevant Force Majeure Event; and
(iii)if Business Fitness is the Affected Party, the Customer will have the right to suspend all payments to Business Fitness during that time in respect of the obligations that are affected by the Force Majeure Event; and
(iv)the term of this Agreement will be extended for that period of time.
(c)A party cannot claim a Force Majeure Event continues to apply to the extent that it can be rectified by a disaster recovery plan or business continuity plan. Business Fitness must prepare and implement a disaster recovery plan or business continuity plan unless the Force Majeure Event prevents it from doing so.
14. Support Services
14.1 Technical Support
(a) During the currency of this Agreement, Business Fitness will perform such services as it considers reasonable for the Customer in order to ensure HowNow remains in substantial conformity with its specifications (Support Services).
(b) Where Business Fitness is providing Support Services, such support shall, at the sole option of Business Fitness, take the form of:
(ii)email transmission correspondence;
(iii)error correction by means of Patches or New Releases; and
(iv)such services as Business Fitness considers are effectively provided off-site.
(c) Business Fitness will deal only and exclusively with the Customer or any of its authorised, suitably qualified or informed representatives when performing the Support Services.
(d) The Customer must have taken all reasonable steps to investigate and diagnose any issues before contacting Business Fitness.
(e) The Customer must appoint a suitably qualified or informed representative to deal with and be the first point of contact in relation to the Support Services.
(f) Business Fitness shall provide the Support Services in response to a report or request by the Customer to Business Fitness:
(i) of a suspected defect or error in HowNow, which defect or error allegedly causes HowNow to deviate from its specifications; or
(ii) for assistance or guidance from Business Fitness.
14.2 Support Availability
Business Fitness shall provide the Support Services between 0900 hours and 1700 hours on every day except Saturday, Sunday or a public holiday in the State of Queensland. Business Fitness does not warrant that it will be capable of promptly receiving, processing or otherwise acting upon a request for Support Services which is made outside these hours or that it can provide on-site Support Services outside these hours.
Services to be provided by Business Fitness under this Agreement do not include:
(a) correction of errors or defects caused by operation of HowNow in a manner other than that currently specified by Business Fitness;
(b) correction of errors resulting from data migration or transformation, whether performed by Business Fitness or third parties;
(c) correction of errors or defects caused by modification, revision, variation, translation or alteration of HowNow not authorised by Business Fitness;
(d) correction of errors caused in whole or in part by the use of computer programs other than HowNow;
(e) correction of errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating staff for the operation of HowNow;
(f) training of operating staff;
(g) rectification of operator errors;
(h) rectification of errors caused by incorrect use of HowNow;
(i) rectification of errors caused by the Customer or third party equipment fault;
(j) the Customer or third party equipment maintenance;
(k) diagnosis or rectification of faults not associated with HowNow;
(l) third party materials;
(m) rectification of errors in the Customer's or third party’s data;
(n) furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by Business Fitness;
(o) correction of errors arising directly or indirectly out of the Customer's failure to comply with this Agreement or any other agreement with Business Fitness;
(p) correction of errors arising directly or indirectly out of any third party’s failure to comply with any agreement between that third party and Business Fitness;
(q) correction of errors or defects which are the subject of a warranty under another agreement; or
(r) to provide Support Services:
(i) "on-site"; or
(ii) to any third party, at any location,
the above list forms the “Excluded Services”.
(a) Personnel: If reasonably requested by Business Fitness, the Customer shall provide a suitably qualified or informed representative to Business Fitness' personnel and to provide such advice or assistance to those personnel as may be necessary in order to enable Business Fitness to access HowNow and relevant equipment and to otherwise effectively perform the Support Services or the Excluded Services.
(b) Remote Access: The Customer shall ensure Business Fitness is provided with full and safe access to any and all equipment in order to provide the Support Services or the Excluded Services and is provided free of charge with all information, facilities and services reasonably required to enable the Support Services or the Excluded Services to be performed effectively. This includes allowing Business Fitness to access through telecommunications infrastructure any equipment or hardware from a remote location.
(a) Business Fitness reserves the right to vary the terms of this Agreement in its absolute and unfettered discretion.
(b) For the avoidance of doubt, Business Fitness is not required to provide to the Customer notice of any variations to the terms in this Agreement, although Business Fitness may do so from time to time.
(c) Your continued access or use of any part of HowNow constitutes your acceptance of such changes. If you do not agree to any of the changes Business Fitness is not obligated to keep providing HowNow and you must terminate and stop using HowNow.
15.2 Entire Agreement
This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
(a) This Agreement is governed by the law in force in the State of Queensland.
(b) Each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.
(c) Each party irrevocably waives any objection it may have now or in the future to the venue of any proceedings where that venue falls within Queensland.
15.4 No Merger
No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.
Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which shall remain in force.
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.
(b) Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party.
(c) No waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.
16. Definitions and Interpretation
In this Agreement the following definitions apply unless the context requires otherwise:
Agreement means these general terms and conditions as amended from time to time.
Authorised User means an employee, agent, customer, client or contractor of the Customer who is authorised by the Customer to access and use HowNow.
Business Day means a day that is not a Saturday, Sunday or public holiday and on which banks are open for business generally in Brisbane, Australia.
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Agreement relating to the business, technology or other affairs of the discloser of the information.
Content means the files and documents contained within the Software, including the Manual.
Controller has the meaning it has in section 9 of the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means You, the user or if you are agreeing to this Agreement on behalf of your company, your company, as does any reference to “You” or “Your”.
Customer Data means data owned or supplied by the Customer and stored on Business Fitness’ systems through the Customer’s usage of HowNow.
Customer Materials means any trademarks, images, content or other materials developed by the Customer prior to the commencement or independently of this Agreement and includes any Customer Data.
Defect means a material failure of HowNow to meet any stated specifications.
Documentation means operating manuals and other materials which are designed to assist in understanding the Software, including user manuals, programming manuals, modification manuals, flow charts, drawings and software listings.
Fees means the fees for the access to and continued use of HowNow, paid monthly.
Force Majeure Event means any event beyond the reasonable control of the non-performing party and which the party could not have prevented by reasonable precautions or could not have remedied by the exercise of reasonable efforts or could not have prevented by taking steps specifically required under this Agreement, including but not limited to the extent that a disaster recovery plan or business continuity plan is able to prevent or remedy such event, which is limited to the following:
(a) fire, flood, earthquake, elements of nature or act of God;
(b) acts of way, terrorism, riot, civil disorder, rebellion or revolution, all by a third party; or
(c) strikes, lockouts or labour disputes of a general nature that extend beyond the non-performing party's Personnel (such as a general or industry-wide strike),
but does not include an act, omission or event caused or contributed to by a Related Entity of the non-performing party.
Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
HowNow means the services and material supplied by Business Fitness to the Customer, known as “HowNow Online”, from time to time, including:
(b) Documentation; and
A person is Insolvent if:
(a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
(b) it has had a Controller appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property;
(c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement);
(d) an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
(e) it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand;
(f) it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject);
(g) it is otherwise unable to pay its debts when they fall due; or
(h) something having a substantially similar effect to any or all of (a) to (g) happens in connection with that person under the law of any jurisdiction.
Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets.
Logon ID means username and password generated by Business Fitness.
Loss means claims, liability, loss, damage costs and expenses including but not limited to legal costs on a full indemnity basis.
Manual means the training, coaching, operating and other manuals created from time to time relevant to the business carried on by Business Fitness, including modification manuals, flow charts, templates, checklists, forms and drawings.
New Release means an update to HowNow which is provided primarily to implement an extension, alteration, improvement or additional functionality to HowNow or otherwise improve functionality or correct an error in HowNow.
Patch means software which has been produced primarily to overcome defects in HowNow.
Personnel includes officers, employees, agents, contractors, consultants and representatives.
Receiver has the meaning it has in the Corporations Act.
Software means the software application supplied by Business Fitness consisting of a set of instructions or statements in machine readable medium including any enhancements, upgrades or modifications to that software.
Support Services means the training, coaching and maintenance services, as specified in this agreement, provided by Business Fitness to the Customer pursuant to this agreement, in respect of HowNow.
Website means online.hownowhq.com or any other site operated by Business Fitness and notified to the Customer from time to time.
16.2 General Interpretation
The following rules also apply in interpreting this Agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a rule, paragraph or schedule is to a rule or paragraph of, or schedule to, this document, and a reference to this document includes any schedule;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to time is to Australian Eastern Standard Time (AEST);
(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
(h) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
(i) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
(k) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
(l) headings are for ease of reference only and do not affect interpretation.