(a) The Agreement Details in the Signing Page state which services we have agreed to provide to you. There is more information about those services in the Scope of Services at the end of these Terms and Conditions.
(b) If we have agreed to provide you with services, this agreement explains how we will provide them.
(c) If we provide you with services, you must pay us the fees in the way explained in this agreement.
(a) 60 days or more before the end of the Initial Period, you can give us a notice telling us that you don’t want to extend this agreement after the Initial Period ends. The agreement will then end after the Initial Period.
(b) If this agreement has been extended for a Further Period, 60 days or more before the end of the Further Period, you can give us a notice telling us that you don’t want to extend this agreement after that Further Period ends. The agreement will then end after that Further Period.
(c) If you don’t give us a notice on time telling us that you don’t want to extend the agreement, it will automatically continue for a Further Period. The Further Period will be the same length as the Initial Period.
We always have the right to make changes to The Keeping Place Application. But we will ensure that The Keeping Place Application is always designed to have the Minimum Capabilities, unless you agree otherwise.
(a) We grant you a licence for the Initial Period and any Further Period for you and your users to use The Keeping Place Application. You must only use (and allow your users to use) your Keeping Place Site to help you store and manage cultural heritage, native title, land management, stakeholders, related agreements and other materials that you have permission to use or that belong to you.
(b) This agreement does not give you or your users any ownership of The Keeping Place Application or any intellectual property in The Keeping Place Application.
(c) If intellectual property in respect of The Keeping Place Application is created while we are providing the services to you, you agree that it belongs us.
(d) If we have put our name, logo or any notice on The Keeping Place Application or any material or information we provide to you, you and your users must not remove it or cover it.
(e) We can grant other people and organisations licences to use The Keeping Place Application.
(f) You must not assign or transfer the licence to use The Keeping Place Application to anyone else.
(g) You must not license, sub-license, re-sell, distribute or otherwise transfer The Keeping Place Application and any purported attempt to do so is void and will not have any effect.
(h) If you or your users do not comply with this agreement, we can suspend your licence to use The Keeping Place Application until you do comply with this agreement. If we suspend your licence, you and your users must not use or try to use The Keeping Place Application.
(a) We will provide you with a username and password for you to access and use your Keeping Place Site.
(b) You are responsible for administering and approving the users that can access your Keeping Place Site.
(c) If we provide you with a username or password for a user, it must only be used by that user.
(a) We will put user terms and conditions on your Keeping Place Site. Your users will have to agree to these terms and conditions before accessing and using The Keeping Place Application.
(b) We may update the user terms and conditions from time to time. We will act reasonably in making any changes and try to give you at least 10 days to review them before they take effect.
(c) We will also give you guidelines, which will set out our policies and procedures relating to the proper maintenance and use of The Keeping Place Application. You and your users must comply with these guidelines (including any updated guidelines we give you) when accessing and using The Keeping Place Application.
(d) We may update the guidelines from time to time. We will act reasonably in making any changes and try to give you at least 10 days to review them before they take effect.
(e) Sometimes, we may give you or your users a direction about using The Keeping Place Application. So long as the direction is reasonable, you and your users must comply with it.
(a) We have tried to make The Keeping Place Application reliable and safe but we are making it available to you as it is. This means you should understand its capabilities and limitations before using it.
(b) As far as the law allows, we will not be liable to you, your users or any third party (including if we are negligent) for any loss or damage you, your users or any third party suffers because you, your users or any third party accessed or used The Keeping Place Application. This includes loss or damage caused by The Keeping Place Application going offline or corrupting or losing material or information.
(c) You and your users must not copy, change, reverse engineer, sell or transfer The Keeping Place Application. Also, you and your users must not try to do any of these things.
(d) You are responsible for managing your Keeping Place Site.
(a) We will automatically install Maintenance Updates on The Keeping Place Application.
(b) If we need to take The Keeping Place Application offline for more than 2 hours for maintenance, we will try to tell you at least 7 days before we take it offline. We may not be able to tell you if the maintenance is urgent.
(c) If you or your users think that The Keeping Place Application is not working properly, you should contact our helpdesk.
(a) To use The Keeping Place Application, you will need to have good internet access. You will need to get this from an internet service provider and you are responsible for the costs of internet access while using The Keeping Place Application.
(b) If you are accessing and using The Keeping Place Application through the internet, we recommend using the Google Chrome internet browser. The Keeping Place Application may not work properly if you use a different internet browser.
(c) Before we install any New Version of The Keeping Place Application, we will let you know if it has any different operating requirements.
(a) When you use our services, you may submit things to us and The Keeping Place Application like files, documents, content, messages, spatial data, contracts and so on. In this agreement, we call this Your Data. Your Data is yours and this agreement does not give us any rights to Your Data except for the limited rights that enable us to provide the services.
(b) You agree that we can collect, store and use Your Data to help us comply with laws and our reporting requirements, to provide the Services and to improve The Keeping Place Application, develop Maintenance Updates and New Versions. This permission extends to trusted subcontractors we work with to provide the services.
(c) You will control and manage the files, data, content and information that you and your users upload, store and share on your Keeping Place Site. We will try to ensure that these files, data and information remain secure in accordance with the guidelines we have given you in relation to the proper maintenance of The Keeping Place Application.
(d) When we provide you with the services, we might process, transmit and store Personal Information. You must get all the permissions required to enable us to do this if you are making Personal Information available to us. This includes where you give us Personal Information so we can give a user a username or password or where you upload Personal Information to The Keeping Place Application.
(e) We must protect your confidential information by keeping it secure and not disclosing it without your prior approval (unless we are required to by law or for the purposes of resolving any dispute about this agreement). Your confidential information is any information you tell us is confidential and Your Data. Your information is not confidential information if it is generally available to the public or we received it from a third party who was allowed to give it to us.
(f) You must protect our confidential information by keeping it secure and not disclosing it to anyone other than your users without your prior approval (unless you are required to by law or for the purposes of resolving any dispute about this agreement). Our confidential information is any information we tell you is confidential, our intellectual property, information relating to our business, customers, plans and market opportunities. Our information is not confidential information if it is generally available to the public or you received it from a third party who was allowed to give it to you.
We may subcontract any part of the services to a suitably qualified and experienced third party. If we subcontract any services we will not be relieved of our obligations under this agreement.
(a) We may give you a tax invoice from time to time for the fees you are required to pay us under this agreement.
(b) You must pay the invoiced amount within 14 days of receiving the invoice.
(c) Changes: Before you extend this agreement for any Further Period, we may change the Subscription Fee or Additional Fees. If there is a change to the fees, we will give you 90 days or more notice before the beginning of the Further Period.
(d) No refunds: You can cancel your subscription at any time. Refunds are not issued unless required by law.
(e) All prices or other sums payable under this agreement are exclusive of GST unless they are clearly stated to include GST.
(f) If GST is imposed on any supply we make to you under this agreement, we may recover from you an amount equal to the GST payable on that supply.
(a) We are not liable to you if we cannot perform anything in this agreement or otherwise comply with it because of a Force Majeure Event.
(b) If we cannot perform something in this agreement because of a Force Majeure Event, we will let you know and we will try to start performing it again or complying with it again as soon as possible.
(c) Force Majeure Events are:
(i) the introduction of or change in any law, order or directive that is binding on us;
(ii) explosion, unusually bad weather, earthquake, fire or other natural disaster;
(iii) terrorism, civil disorder or vandalism;
(iv) any failure, delay or suspension of any of our suppliers;
(v) industrial disputes, that prevents us from performing anything in this agreement or otherwise complying with it; and
(vi) anything else that is not listed above but that prevents us from performing anything in this agreement or otherwise complying with it,
but Force Majeure Events do not include anything that we could have prevented or overcome by acting reasonably, including spending a reasonable amount of money.
(a) Our total liability to you on any basis (including for negligence) is limited to the Subscription Fee paid by you with respect to the Initial Period or the Further Period in which the liability arose.
(b) We are not liable to you for any consequential losses, including loss of profit, loss of revenue or loss of business.
(c) If any law states that we must give you certain guarantees and those guarantees cannot be excluded by this agreement, then those guarantees are not affected by this agreement except that our liability to you if we breach those guarantees will be limited to either (at our choice):
(i) providing you the relevant services again; or
(ii) paying the cost of having the relevant services provided to you again.
If one of us wants to contact the other or give them a notice, the contact details in the Signing Sheet can be used. These contact details can be changed by giving written notice of the change.
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported in the manner outlined in the guidelines we provide to you. We reserve the right to delete or disable content on The Keeping Place Application alleged to be infringing the intellectual property of others.
Neither you nor us can terminate this agreement under clause 18, or commence any proceeding in court in respect of a dispute relating to this agreement until we have both complied with the following dispute resolution process:
(a) firstly, the party claiming that there is a dispute will send to the other a notice setting out the nature of the dispute;
(b) secondly, we will both use our reasonable endeavours to try to resolve the dispute by direct negotiation;
(c) thirdly, if we are both unable to resolve the dispute within 14 days of the issuing of the notice, then the dispute will go to mediation, with the mediator to be agreed by both of us, or if we can’t do that, selected by the Resolution Institute (ACN 008 651 232); and
(d) finally, if the dispute can’t be resolved within 28 days of the appointment of the mediator, then either party may end the dispute resolution process and commence legal proceedings or, if the dispute is about a termination notice the party has given under clause 18, terminate this agreement in the way explained in that clause.
(a) If you breach this agreement in a material way, we can give you a notice telling you that you must fix the breach. If you do not fix the breach within 30 days of getting the notice then the notice will be treated as if it was a notice we have sent you under clause 17(a) claiming there is a dispute about the breach. If this happens and the dispute cannot be resolved in the way explained in clause 17, we may terminate this agreement by giving you another notice telling you that the agreement is terminated
(b) If you become insolvent, we can terminate this agreement by giving you a notice telling you that the agreement is terminated.
(c) If we breach this agreement in a material way, you can give us a notice telling us that we must fix the breach. If we do not fix the breach within 30 days of getting the notice then the notice will be treated as if it was a notice you have sent us under clause 17(a) claiming there is a dispute about the breach. If this happens and the dispute cannot be resolved in the way explained in clause 17, you may terminate this agreement by giving us another notice telling us that the agreement is terminated.
(d) If we become insolvent, you can terminate this agreement by giving us a notice telling us that the agreement is terminated.
(e) If this agreement is terminated for any reason, we will, if requested by you and at your cost, export Your Data from The Keeping Place Application to a hard drive and provide that hard drive to you within 90 days of the termination of this agreement.
(f) You can terminate this agreement by giving us notice telling us that the agreement is terminated if:
(i) a Force Majeure Event prevents us for from performing anything in this agreement or otherwise complying with it for a total period of 90 days in the Initial Period or for a total period of 90 days in a Further Period; and
(ii) as a result, during those 90 days, you cannot make use of most of the Minimum Capabilities.
Business Hours means 9:00 in the morning until 5:00 in the afternoon in Perth on any day that is not a Saturday, Sunday or a public holiday.
Establishment Date means the date on which we first provide you with a username and password to access and use The Keeping Place Application after we have set up and configured your Keeping Place Site.
Force Majeure Event is defined in clause 13(c).
Further Period means each period after the Initial Period that this agreement continues.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Period means the Initial Period stated in the Signing Sheet, which commences on the Establishment Date.
Keeping Place Site means the website and interface through which you and your users access The Keeping Place Application.
Maintenance Updates means an update to The Keeping Place Application that corrects a fault or changes The Keeping Place Application but which is not a New Version.
Minimum Capabilities means the minimum capabilities in the Signing Sheet.
New Versions means a new version of The Keeping Place Application that we market as part of our business and which is so different from previous versions that it is considered to be a new product.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable.
Signing Sheet means the Signing Sheet that we both signed to enter into this agreement.
Terms and Conditions means these Subscription Agreement Terms and Conditions.
The Keeping Place Application means the software application we make available to people and organisations to assist with the management of cultural heritage and native title information.
Year means each 12 month period starting on the Establishment Date.
Your Data means the data, files, documents, multi-media, spatial files and other content submitted to us or your Keeping Place Site by you or your users.
Interpretation
The word ‘including’ in this agreement does not limit the meaning of a word.
If this agreement refers to any legislation, it includes any modification or replacement of that legislation.
We will provide you with the following Set Up Services.
(a) Configuration of the Keeping Place Site
(b) Initial Training
We will provide you with the Software Services during the Initial Period and any Further Period.
(a) Access
(b) Maintenance of the Software
We will provide you with the Additional Services during the Initial Period and any Further Period.
(a) Requested Services
(b) Additional Helpdesk Services
We acknowledge the Traditional Owners of Country throughout Australia. We pay our respect to Elders, past and present, and to those emerging as leaders in the community. We acknowledge and honour their work to protect Aboriginal culture, Country and communities
