Standard Licence and Services Terms

Note: Certain capitalised words are defined in clause 16.

1 Grant of licence

1.1 We grant you a licence for the Software on the Licence Terms, subject to the Agreement.

2 Stores and Users

2.1 If your licence is for more than 1 Store, you:

(a) must ensure that the number of Stores does not fall below the number of Stores as at the Start Date;

(b) must on request from us promptly notify us of your allocation of the Software and Support Services for each Store;

(i) the minimum number of Users per Store must be at least 2;

(ii) the maximum number of Users per Store must not exceed 5, unless we agree to a higher number subject to you agreeing to additional charges based on increased complexity.

2.2 The Users may be varied as follows:

(a) Adding users: You and we may agree in writing to increase the number of Users (whether for a new Store or to increase capacity for an existing Store) in which case the Licence Fees will increase for each new User added on the same basis as the Licence Fees are charged for existing Users.

(b) Reducing users: You may reduce any Users added after the Start Date under clause 2.2(a) by giving us at least 15 days’ prior notice before the start of the month in which the reduction is to take effect. For the avoidance of doubt, you may not reduce the number of Users below the number of Users as at the Start Date.

3 Support Services

3.1 You may request Support Services from us from time to time in accordance with Schedule A.

3.2 We shall provide you Support Services in accordance with Schedule A.

3.3 We are not obliged to provide you Support Services in any of the following circumstances:

(a) where you are not compliant with all your obligations under the Agreement;

(b) where the Software are used, altered or modified in a manner that is not permitted under the Agreement;

(d) where you or any third party on your behalf (including your franchisee) takes steps intended to rectify actual or apparent problems with the Software without our prior written approval;

(e) where you are unable to use the Software due to factors out of our reasonable control, including:

(i) issues caused by third party hardware and software;

(ii) where third party hardware or software does not meet the Minimum System Requirements;

(iii) lack of or insufficient Internet access.

3.4 You shall be solely responsible for ensuring at your cost that all third party hardware and software you use in connection with the Software meets the Minimum System Requirements.

3.5 You shall be solely responsible for ensuring at your cost that you have Internet access to enable use of the Software.

3.6 You shall provide us with all such reasonable assistance and access to systems, premises, personnel and facilities as may be necessary or desirable to assist us provide the Software and Support Services under the Agreement. This may include for example access to monitor system operation whilst production activity is taking place, and the installation of diagnostic software, debug build versions of the Software or components and other tools typically used for software development.

4 Performance standards

4.1 We warrant that in performing the Support Services and Additional Services (if any):

(a) we will:

(i) exercise due care, diligence and skill;

(ii) perform the relevant services in a timely and professional manner and to the best of our knowledge and expertise;

(iii) comply with, and ensure that our officers, employees and contractors comply with, all applicable laws;

(b) we, and any of our officers, employees or contractors involved in the provision of the services, have all necessary licences and are sufficiently qualified to perform the services to the standards required by the Agreement.

4.2 We warrant that the Software will:

(a) be free from viruses or other harmful code;

(b) materially comply with the Documentation;

(d) not infringe the IP Rights of any person.

5 Payment

5.1 You shall pay us the Licence Fees in accordance with the Payment Terms.

5.2 You shall bear your own costs of using the Software in accordance with the terms of the Agreement.

5.3 We may vary the Licence Fees from time to time by giving you notice at least 3 months prior to date the variations are due to take effect. If you do not agree to the variations, you may terminate the Agreement by giving us notice at least 1 month prior to the date the variations are due to take effect. If you do not terminate the Agreement in accordance with this clause 5.3, you shall be deemed to accept the price variations on and from the date immediately following 1 month prior to the date the variations are due to take effect.

5.4 You shall pay us the Additional Fees for Additional Services in accordance with the invoices we issue to you from time to time.

5.5 You shall reimburse us for any reasonable travel, accommodation, courier, transportation and other out-of-pocket expenses incurred by us in providing the Software and Support Services you request.

5.6 All amounts expressed in the Agreement are in Australian dollars and exclude GST, except where expressly stated otherwise. You shall pay us the applicable GST in relation to all taxable supplies by us under the Agreement.

6 General restrictions

6.1 You shall not do or attempt any of the following without our prior written permission:

(a) reverse engineer, decompile, disassemble, derive the source code of or decrypt any of the Software;

(b) rent, lease, lend, sell, redistribute or on-supply the Software;

(d) engage any third party to provide services to you in relation to the Software that are in the nature of the Support Services;

(e) create any Encumbrance over the Software;

(f) introduce any malicious code or virus to the Software;

(g) interfere with or disrupt the use of the Software by other users;

(h) damage or disable the Software or any networks connected to them;

(i) deliberately or recklessly cause harm (whether financial or not) to the goodwill and reputation of us or our affiliates,

6.2 and you shall ensure that none of your employees, agents, contractors or franchisees do or attempt any of these things without our prior written permission.

7 IP Rights

7.1 We acknowledge and agree that all of your data (including data in relation to business operations, assets, facilities, personnel, policies, customers, suppliers, products, services and prices) in whatever form and whether or not entered into, stored in, generated by or processed through the Software, remains at all times owned by you.

7.2 You acknowledge and agree that all IP Rights in the Software and Documentation remain at all times owned by us. Nothing in the Agreement has effect to transfer or assign to you any of our IP Rights.

7.3 You shall not challenge or assist any third party to challenge the any IP Rights in the Software and Documentation.

7.4 You shall promptly notify us if you become aware of any suspected, threatened or actual infringement of any IP Rights in the Software or Documentation.

7.5 If any claim is made against you that your use of the Software or Documentation in accordance with the Agreement infringes any third party IP Rights (Infringement Claim), you shall promptly notify us and, at our cost, provide full details of the Infringement Claim.

7.6 We may at our cost take control of the defence of any Infringement Claim using our chosen legal representation, in which case you shall make available to us, at our cost, any relevant records, data, documents or information and cooperate with us in the defence of any Infringement Claim.

7.7 We shall indemnify you and your officers against all loss, liability and reasonable expenses incurred in connection with the defence of any Infringement Claim, provided that:

(a) you comply with your obligations under the Agreement;

(b) you co-operate fully with us and follow our reasonable directions in relation to the defence of the Infringement Claim;

(c) you do not without our prior express approval make any admissions to any third party, or any public statements, in relation to the Infringement Claim;

(d) you do not without our prior express approval engage in any settlement discussions with any third party in relation to the Infringement Claim.

7.8 If you or anyone on your behalf creates any modifications to the Software, you hereby assign to us all IP Rights in such modifications effective upon creation. You shall do such further acts and execute such further instruments as may be necessary or desirable to give full effect this clause.

8 Confidentiality

8.1 General restriction: Subject to clause 8.1, a party shall not use for any purpose or disclose to any person any of the other party’s Confidential Information.

8.2 Exceptions: A party may do any of the following:

(a) use the other party’s Confidential Information as necessary to perform the Agreement;

(b) disclose the other party’s Confidential Information to:

(i) its employees, contractors and related bodies corporate who need to know the information for performance of the Agreement; and

(ii) its accountants, lawyers and other professional advisors;

(c) in which case it shall indemnify the other party for any losses (including lost profits) that the other party suffers in relation to any subsequent use or disclosure by such persons;

(d) use and disclose the other party’s Confidential Information in accordance with the written approval of the other party expressly permitting such use or disclosure;

(e) use and disclose the other party’s Confidential Information as required by, in which case it shall take reasonable steps to limit the required use or disclosure.

8.3 Ownership: Each party acknowledges and agrees that the other party’s Confidential Information remains the property of the other party.

8.4 Data security: Each party shall have in place reasonable security measures to minimise the possibility of security breaches in relation to the other party’s Confidential Information.

8.5 Security breaches: Each party shall immediately notify the other party if it becomes aware of any actual or suspected security breaches in relation to the other party’s Confidential Information.

8.6 Deemed knowledge: Without limitation, information is deemed to be known to a party if it has in its possession, custody or power any documents or records (in any form) from which the information can be directly ascertained.

8.7 Uncertainty: If a party is uncertain as to whether information is Confidential Information of the other party, it shall treat the information as Confidential Information of the other party unless and until the other party tells it otherwise in writing.

9 Security

9.1 You must:

(a) ensure that all Users do not do anything contrary to your obligations under the Agreement;

(b) ensure that the Software and Documentation is protected at all times from misuse, damage, destruction, copying or any form of unauthorised use; and

(c) promptly notify us of any misuse, damage, destruction, copying or any form of unauthorised use of the whole or any part of the Software or Documentation by any person.

9.2 You must keep accurate records of any use, copying, modification and disclosure of the Software (including records of the Users who have accessed the Software) and shall:

(a) permit us to inspect such records at any time during your normal business hours; and

(b) provide us copies of all or any part of such records.

10 Subcontracting

10.1 We may enter into subcontracts with third parties regarding the performance of our obligations under the Agreement.

10.2 We shall remain liable to you for performance of the Agreement notwithstanding any subcontracts we enter into.

11 Audits

11.1 During the term of the Agreement only, we may, at our cost, appoint an auditor to audit your compliance with the Agreement. You shall provide our auditor access upon reasonable notice and during regular business hours to your premises to inspect and copy any documents or records (however stored) in your possession, custody or control which are directly related to the Agreement (including records relating to the calculation of the amount of any fees payable by you to us under the Agreement), provided that any of your Confidential Information in such copies shall be kept confidential by us and our auditor in accordance with the Agreement.

11.2 Any audit by our auditor shall be solely for our benefit and the performance or non-performance of any audit shall not constitute a waiver of any claims we may have against you for any breaches of the Agreement discovered or discoverable upon such audit, and has no effect on our rights or remedies under the Agreement or at law.

12 Liability

12.1 To the full extent permitted by law, all warranties, representations, statements, terms and conditions relating to our goods and services not expressed in the Agreement are hereby excluded.

12.2 To the full extent permitted by law, we shall not be liable for any loss arising directly or indirect from and in connection with your use of (or inability to use) the Software or Support Services, including in circumstances of power or telecommunications interruptions or failures or any other circumstance beyond our reasonable control.

12.3 To the full extent permitted by law, our aggregate liability to you for any loss or damage whether arising from breach of contract, negligence or any other tort, in equity or otherwise and whether or not we were aware of the possibility of such loss or damage, is limited to a maximum amount equal to the fees paid by you to us under the Agreement in the preceding 12 months.

12.4 To the full extent permitted by law, neither party shall be liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, from any cause, whether arising from breach of contract, negligence or any other tort, in equity or otherwise, and whether or not a party was aware of the possibility of such loss or damage.

12.5 To the extent that we are liable in connection with any statutory warranties under the Competition and Consumer Act 2010 (Cth), our liability under such statutory warranties is limited, at our option, to one or more of the following:

(a) if the liability relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of such goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) if the liability relates to services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again,

and you agree such limitation of liability is reasonable in the circumstances.

13 Term and termination

13.1 Term: The Agreement commences on the Start Date and expires on the End Date, subject to any extension or termination in accordance with this clause 13.

13.2 Extension: The End Date may be extended for further extension periods of 12 months each by us giving you notice no more than 3 months prior to the then current End Date. If after receiving such notice from us you do not provide notice that you do not intend to extend the End Date, then the End Date will be automatically extended for the next extension period specified in our notice to you.

13.3 Suspension: We may suspend your access to the Software and Support Services if you fail to make timely payment of any amounts you owe us under the Agreement, without any liability to you.

13.4 Termination for convenience: Either party may terminate the Agreement for convenience by giving the other party at least 6 months’ notice of termination.

13.5 Termination for default: Either party may terminate the Agreement on notice to the other party if the other party:

(a) breaches the Agreement and fails to remedy the breach within 14 days of receiving a previous notice requiring it to do so;

(b) breaches the Agreement and the breach is incapable of remedy;

(d) undergoes or experiences any insolvency event.

13.6 Early termination fees: If the Agreement is terminated:

(a) by you under clause 13.4; or

(b) by us under clause 13.5,

you must pay us in addition to any other amounts payable upon termination, an amount equal to:

(c) if the Agreement has not been extended under clause 13.2, the Licence Fees that would have been payable by you from the date of termination to the date the Agreement would have expired absent any termination; or

(d) if the Agreement has been extended under clause 13.2, the lesser of:

(i) the Licence Fees that would have been payable by you from the date of termination to the date the Agreement would have expired absent any termination; or

(ii) the Licence Fees payable by you for the 6 month period immediately prior to the date of termination,

and you acknowledge and agree that such amounts represent a reasonable and genuine pre-estimate of the loss we would suffer due to early termination of the Agreement.

13.7 No prejudice: Termination or expiry of the Agreement does not prejudice any claims or rights of a party existing immediately prior to termination or expiry.

13.8 Survival: Without limiting the clauses which by their nature survive termination or expiry, the parties agree that clauses 7, 8, 9, 11 and 12 survive termination or expiry of the Agreement.

14 Dispute resolution procedure

14.1 If there is a dispute between the parties arising out of or in connection with the Agreement, then within 14 business days of a party notifying the other party in writing of the dispute, a representative of each party authorised to settle the dispute must meet and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions.

14.2 A party may not start court proceedings in relation to a dispute within 21 days after the commencement of discussions under clause 14.1, unless the party seeks urgent interlocutory relief.

15 General legal terms

15.1 Entire agreement: The Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, between the parties in respect of its subject matter. Any terms not expressly included in the Agreement are hereby excluded.

15.2 Costs:Each party shall bear its own costs in relation to the negotiation, preparation and execution of the Agreement.

15.3 Invalidity: The invalidity of any provisions in the Agreement shall not affect the validity of any other provisions.

15.4 Force majeure: A party shall be excused from performing its obligations under the Agreement (except for any obligation to pay money) to the extent due to, and for the duration of, a force majeure event that is out of its reasonable control.

15.5 Relationship of parties: Nothing in the Agreement creates a relationship of joint venture, partnership, employer-employee or principal-agent between the parties.

15.6 Further acts: A party shall at its own cost do all things (including executing all instruments) necessary or desirable to give full effect to the Agreement.

15.7 Wavier: A waiver of a power or right under the Agreement shall not be effective unless it is in writing and signed by the party giving the waiver.

15.8 Variations: The Agreement must not be varied except by further written agreement between the parties.

15.9 Notices: A notice or other communication required or permitted under the Agreement must be in writing and may be sent by email, and is deemed to take effect from the date it is received unless a later date is specified in the notice or communication.

15.10 Exercising rights: Except where expressly stated otherwise in the Agreement, a party may exercise any right or discretion, and withhold any approval or consent, under the Agreement without being subject to any requirement to act reasonably.

15.11 Counterparts: The Agreement may be executed in any number of counterparts which together shall constitute one instrument.

15.12 Governing law: The Agreement is governed by the laws of Victoria, Australia.

15.13 Jurisdiction: The parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.

15.14 Interpretation: In the Agreement, unless the contrary intention appears:

(a) the word “including“ and similar words are not words of limitation;

(b) the singular includes the plural and vice versa;

(c) a reference to a statute, regulation or provision of a statute or regulation includes a reference to any amended, re-enacted or replacement version from time to time;

(d) headings (including words in italics) are for convenience and do not affect the construction of the Agreement;

(e) a reference to a thing includes any part of that thing;

(f) a reference to a clause, schedule or annexure is a reference to a clause in or a schedule or annexure to the Agreement; and

(g) a reference to the Agreement includes any schedules and annexures to it.

16 Definitions

16.1 In the Agreement the following definitions apply:

(1) Capitalised words that are not otherwise defined herein have the corresponding meanings as set out in the Agreement between us and you.

(2) Agreement means the agreement that we provide to you for signing which incorporates these Standard Licence and Services Terms by reference.

(3) Confidential Information means, in relation to a party, any information concerning that party’s financial affairs, business and marketing plans, customers, suppliers, employees, tangible and intangible property, pricing, products (including product concepts, samples, prototypes and specifications), research and development activities, manufacturing processes, and commercial or other dealings with third parties (including government bodies) that is known to the other party at any time (including prior to execution of the Agreement), but excludes information that:

(i) is in the public domain at the time it first becomes known to the other party; or

(ii) thereafter enters into the public domain independently of any acts or omissions of the other party; or

(iii) becomes known to the other party independently of the Agreement.

(4) Documentation means any technical and operational documentation supplied by us to you in relation to the Software, including all modifications to such documentation.

(5) Encumbrance means any mortgage, pledge, charge, assignment, security interest or other encumbrance.

(6) IP Rights means all present and future intellectual and industrial property rights throughout the world whether conferred by statute, common law, in equity or otherwise, including present and future copyright; rights in relation to inventions (whether or not patentable) and patents; rights in relation to registered and unregistered trade marks; rights in relation to industrial designs; rights in relation to confidential information, trade secrets and know how; rights to apply for and to obtain the registration and grant of any of the foregoing rights, and to apply for and to obtain renewals, divisionals and extensions for such rights; rights to claim and retain damages and other remedies (including equitable relief) for any cause of action arising at any time (including prior to the date of the Agreement) in respect of any of the foregoing rights.

Schedule A

Support Services

We will provide Support Services for the Software in accordance with the availability hours and response times set out in the table below. Support Services will include:

(a) telephone, email and Zendesk support to assist Users in using the Software;

(b) updating the Software as necessary to rectify defects, comply with changes in legal requirements and enable compatibility with new releases of software and hardware as specified in any updated Minimum System Requirements we set from time to time for new releases;

Severity Level	Description	Availability hours	Response time	Resolution steps
1	Routine query on general issues and troubleshooting	8.30am to 5.30pm Monday to Friday (excluding public and bank holidays) for direct Readysell telephone support24 hour x 7 days a week email notification at support@readysell.com.au24 hour x 7 days a week Zendesk ticketing platform available through Readysell web portal	Email and/or telephone response within 48 hours (during business hours) acknowledging the issue and indicating what follow up action is being taken.	Follow-up email to confirm once issue resolved.
2	Minor issues not affecting operation	8.30am to 5.30pm Monday to Friday (excluding public and bank holidays) for direct Readysell telephone support24 hour x 7 days a week email notification at support@readysell.com.au24 hour x 7 days a week Zendesk ticketing platform available through Readysell web portal	Email and/or telephone response within 24 hours (during business hours) acknowledging the issue and indicating what follow up action is being taken.	Follow-up email to confirm once issue resolved.
3	Serious issues involving partial operational failure	8.30am to 5.30pm Monday to Friday (excluding public and bank holidays) for direct Readysell telephone support24 hour x 7 days a week email notification at support@readysell.com.au24 hour x 7 days a week Zendesk ticketing platform available through Readysell web portal	Email and/or Telephone response within 12 hours (during business hours) acknowledging the issue and indicating what follow up action is being taken.	Follow-up emails updating on key milestones achieved towards resolution of issue and to confirm once issue resolved.
4	Critical issues involving total operational failure	8.30am to 5.30pm Monday to Friday (excluding public and bank holidays) for direct Readysell telephone support24 hour x 7 days a week email notification at support@readysell.com.au24 hour x 7 days a week Zendesk ticketing platform available through Readysell web portal	Telephone and email response within 4 hours (during business hours) acknowledging the issue and indicating what follow up action is being taken.	Follow-up emails and telephone calls updating on key milestones achieved towards resolution of issue and to confirm once issue resolved.