The client referenced in the corresponding Order Form (referred to herein as “Client”) has engaged CareerHub Pty Ltd (ACN 166 388 898), a Symplicity subsidiary, of Studio 1, 694 Ann Street, Fortitude Valley, Brisbane, Queensland 4006, AUSTRALIA (referred to herein as “CareerHub”), for the specific purposes of CareerHub providing software applications (referred to herein as “Software”) and associated or additional services (“Services”) to the Client as indicated on each Order Form executed by the parties.
Subject to the terms and conditions hereof, CareerHub hereby grants to Client, and Client hereby accepts, for the term specified in each applicable Order Form (“Term”), a license to use the Software in accordance with the Software documentation made available by Career Hub ((Documentation”) solely for the internal business purposes of the named Client to be utilised by authorised users of Client, under one of the following models as indicated in the Order Form:
a) A non-exclusive, non-transferable license to use the Software referenced in Order Form and associated APIs, web hosting, support services provided by CareerHub and deliverables from Professional Services (“SaaS”).
b) A non-exclusive, non-transferable license to install and use the Software on a single computer or on a network server in accordance with the terms of this Agreement and the Order Form. Client can transfer the Software to a replacement computer or network server if necessary. Client may make a copy of the Software solely for back up purposes. Client must reproduce all copyright, trademark, trade secret and other proprietary notices in such copies (“Self-hosted”).
Subject to this Agreement, Client may not modify, improve, enhance, adapt, translate, reverse engineer, disassemble, re-engineer, or decompile the Software for any purpose or in any manner whatsoever. Client may not insert data directly into the Software database via any means other than the web interfaces or APIs provided by CareerHub. Repair of errors caused by an attempt to insert data through non-approved interfaces is not provided by our support services and will be charged at an appropriate industry rate. Until such repair is complete the support services provided under this Agreement will be suspended. Client may not directly edit or add any files within the Software application directories. Any files added or altered by Client will be overwritten on the next Software update without warning.
The grant of rights to the Software is not a sale of the Software. CareerHub and its third-party providers reserve all rights not expressly granted by this Agreement.
a) As between CareerHub and Client, any Client data provided to CareerHub is owned by Client or Client’s licensors. The Client represents to CareerHub that, to the best of its knowledge, any data, graphics, photos, designs, trademarks, or artwork furnished by the Client to CareerHub or utilised by Client in conjunction with the Software are owned by the Client, or that the Client has obtained the necessary rights to use each of these elements.
b) Client hereby agrees that any material submitted by the Client for publication will not knowingly contain anything leading to an abusive or unethical use of the Software. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, any harassing and harmful material or uses, any illegal activity, or material advocating illegal activity, and any infringement of privacy or libel (“Abusive Material”). Client indemnifies CareerHub for loss it incurs arising from a third-party claim resulting from Client’s publication of Abusive Material via the Software, except to the extent that loss was caused or contributed to by CareerHub, its officers, employees, agents or subcontractors.
5.1 CareerHub agrees during and after the term of this Agreement:
a) to treat Confidential Information and Personal Information disclosed to it by the Client or accessed or obtained in connection with this Agreement (“Sensitive Information”) as confidential, subject to applicable law including the Privacy Laws;
b) to maintain industry standard practices for the secure storage of Sensitive Information; and
c) to only use and disclose Sensitive Information for necessary and lawful purposes related to the administration of this Agreement.
CareerHub must, and must ensure its officers, employees, agents and subcontractors, comply with the applicable Privacy Laws to the extent they apply to their activities under this Agreement.
5.2 During the Term and thereafter, the Software, the Documentation, the terms of this Agreement, and any and all other technical and non-technical information provided by or related to CareerHub or its business (“Confidential Information”) shall be proprietary and confidential to CareerHub, and Client shall not use, distribute, or make available Confidential Information, or permit such to be done, except as explicitly stated in this Agreement. Confidential Information includes without limitation any and all software, systems, source code, object code, screen displays, methods, processes, inventions, works of authorship, clients, vendors, and business plans. Notwithstanding the foregoing, Confidential Information does not include any information independently developed by Client without regard to the Confidential Information, information in the public domain, or information disclosed to Client by a third party not in violation of any confidentiality restrictions. Upon termination of this Agreement, the receiving party shall destroy and provide written confirmation of the destruction of, all Confidential Information received or created pursuant to this Agreement, at the Receiving Party’s sole expense.
6.1 Professional Services Fees and Expenses. Except as otherwise set forth in an Order Form or Statement of Work, Professional Services are billed on a time and materials basis periodically as work is performed with payment rendered by Client under the terms described in the applicable Statement of CareerHub reserves the right to withhold Professional Services while any fees remain overdue if such fees are not the subject of a bona fide dispute communicated to CareerHub in writing. Client will reimburse CareerHub for reasonable out-of-pocket expenses incurred in performance of the Professional Services, which include but are not limited to travel expenses, per diem and mileage, or as may be further described in a Statement of Work. Any prepaid Professional Services must be utilised within 12 months of the initial order and any unused elements expire thereafter without refund.
6.1. (a) Customisations. CareerHub will perform customisations as set out in a Statement of Work in which case Client will have the same license usage rights to the customisations as it has to the Licensed Software/Technology licensed hereunder. Customisations are not covered by support services except where separately purchased pursuant to the terms of a separate “Customisation Support Services” addendum.
6.1 (b) Professional Services Warranties. CareerHub represents and warrants that the Professional Services will be provided by qualified personnel with reasonable skill and care in accordance with generally accepted industry standards. CareerHub’s obligation respecting its material breach of the foregoing warranties is for CareerHub to re-perform the affected Professional Services, as the case may be, at no additional cost to Licensee.
6.2 Support Services. During the license Term CareerHub shall provide the Client support services, which include telephone assistance, email, website, Skype or other online communication or training tools as agreed by CareerHub to identify issues that are potential bugs or errors in the Annual license includes maintenance updates and new releases for the Software that become generally available to clients of the Software during the license Term. The Client acknowledges that updates are applied automatically to the Software via CareerHub’s automated update server.
If Software is granted as per section 1 b), Client will ensure that CareerHub support staff will be provided with direct access to the application server hosting the Software using a local system administrator account for the purposes of supporting Client’s Software system. Client agrees to provide access to the application server(s) via windows remote desktop (RDP) client under a non-expiring account while this agreement is current. Any change to this access by Client could result in suspension of support services and potential termination of contract. If required by Client, CareerHub will agree to authenticate and access the Software application server via a Virtual Private Network. If a Virtual Private Network is required by Client, then Client agrees that CareerHub will not be required to:
CareerHub warrants that the Software will operate substantially in accordance with the Documentation after it is made available to Client. If Client discovers any failure of the Software to operate in such manner, Client shall promptly notify CareerHub in writing of such failure. Upon receipt of such notice, CareerHub shall undertake commercially reasonable efforts to resolve or fix such failures, provided that such failure can be reproduced and verified by CareerHub using the most recent version of the Software, and that any nonconformity to applicable documentation is not caused by customisations or configurations specific to Client or any unauthorised modification or misuse of the Software. The remedy set forth in this paragraph shall be Client’s sole and exclusive remedy for breach of the warranties provided under this warranty. CareerHub does not provide guarantee for third-party components, operating systems or any other software or hardware that was not provided by CareerHub. Due to the continually changing and advancing nature of the internet, CareerHub does not guarantee full compatibility or error free operation of the Software using internet browser versions which are major releases older than 3 years.
a) If any third party brings a claim, demand or cause of action (“Demand”) against Client alleging that the use of any CareerHub products or technology (the “Subject Technology”) authorised under this Agreement infringes a third party’s intellectual property right. In connection with any such claim and provided that Client has promptly fulfilled all the foregoing obligations and Client’s use of the Software at all times was in compliance with the Agreement and the Software documentation, CareerHub shall at its own expense and option: (i) indemnify, defend, and settle such claim, (ii) procure Client the right to use the subject technology, (iii) modify or replace the Subject Technology to avoid infringement; or (iv) refund the applicable fee paid for the current term relating to the Subject Technology.
b) The foregoing is conditioned on Client having notified CareerHub promptly in writing of such Demand, Client giving CareerHub sole control of defence and/or settlement thereof (including without limitation all negotiations for settlement and compromise thereof), and Client cooperating in the defence thereof at CareerHub’s request, provided that CareerHub will keep Client informed of, and will consult with any independent legal advisors appointed by Client at Client’s own expense regarding the progress of such defence. Client shall not incur any costs or expenses on behalf of CareerHub under or pursuant to this Agreement without CareerHub’s advance written consent.
c) CareerHub shall have no liability to Client under this Section 8 or otherwise for any Demand alleging infringement or violation of applicable Privacy Laws based upon: (i) any use of the Software in a manner other than as specified by CareerHub; (ii) any combination of the Software with other products, equipment, devices, software, systems or data not manufactured by CareerHub (including, without limitation, any software used by Client in conjunction with the Software) to the extent such claim is directed against such combination; (iii) data, information, graphics or other media files or other content provided by Client or any Client user, or the use of such content; or (iv) any modifications or customisation of the Software by any person other than CareerHub.
d) The provisions of this Section 8 state the entire liability and obligations of CareerHub, and the exclusive remedy of Client with respect to claims by any third-party alleging infringement of any intellectual property right by CareerHub. The remedies specifically provided by this Agreement and the provisions of this Section allocate between the parties the risks under this Agreement, some of which may be unknown or undeterminable. Such limitations were a material inducement for the parties to enter into this Agreement, and the parties have relied upon such limitations in determining whether to enter into this Agreement. The indemnity provided under the preceding paragraph will be reduced proportionately to the extent that any act or omission of the Client or its agents, officers or employees contributed to the relevant liabilities.
To ensure proper operation of the Software, Client should make every reasonable effort to undertake the following tasks:
a) Implement appropriate safeguards to protect data from inadvertent destruction by machine or software failure.
b) Perform backups of the Software application server and the Software databases on a minimum 24-hour schedule.
c) Ensure that the database and database server are operationally stable, and that appropriate software and security patches are applied.
10.1 Term. This Agreement commences from the effective date of the first Order Form between the parties (the “Effective Date”) and shall continue in force until the expiry of all Order Forms executed by the parties.
10.2 Fees and renewals. For each licensed product or service, Client shall pay to CareerHub upon execution of this Agreement and any extensions/renewals thereof the fee referenced in each Order Form which shall not be refunded or prorated for any reason. Except to the extent indicated to the contrary on an Order Form, subscription products and services shall renew automatically for successive 12-month terms at the then-current pricing unless either party provides written notice of non-renewal at least 90 days prior to the expiry of the applicable term. Except for terminations made in accordance with the requirements of this Section 10 (including applicable notice period requirements), Licensee shall pay all applicable fees set forth in this Agreement for any and all renewal periods of this Agreement for each product or service.
10.3 Payments. Payments are due net thirty (30) days from the date of CareerHub’s invoice and are subject to late charges thereafter, calculated at the lesser of 2% interest per month (or fraction thereof) or the maximum rate permitted by law. Payment shall be made by direct bank deposit the currency specified in CareerHub’s invoice. Any billing dispute must be made in good faith, in writing and, together with all supporting documentation, received by CareerHub within thirty (30) days from the date of receipt of CareerHub’s invoice, or the right to dispute such billing shall be deemed to have been waived. Licensee shall otherwise timely pay any undisputed and validly due fees.
In no event shall CareerHub be liable to Client or any other person or persons for any indirect, incidental, consequential, special, punitive, exemplary, or extra-contractual damages of any kind whatsoever arising from or connected with the Software, Services or this agreement, including, but not limited to, lost profits, lost revenues, or loss of business, regardless of legal theory, whether or not foreseeable, even if either party has been advised of the possibility or probability of such damages and even if the remedies otherwise provided by this agreement fail of their essential purpose. The aggregate total liability of CareerHub under or in connection with the Software, Services and this Agreement to Client or any other persons shall under no circumstances exceed the amounts paid by Client over the 12-month period immediately preceding the incident giving rise to the liability under the Order Form or Statement of Works for the applicable product or service.
In the event of any dispute between the parties under or in connection with this Agreement, except where a party seeks urgent interlocutory relief or in the case of non-payment, the parties will:
a) within 7 days (or such other period agreed between the parties) of a party providing notice of a dispute to the other party, meet with a view to resolving the dispute informally; then
b) if the dispute is not resolved, within 7 days (or such other period agreed between the parties) of that meeting, the Deputy Vice-Chancellor (Education) of the Client and the General Manager (or equivalent) of CareerHub will meet to resolve the dispute; then
c) if the dispute remains unresolved within 21 days (or such other period agreed between the parties) of provision of the notice of dispute or within 7 days (or such other period agreed between the parties) of the date of the last meeting, whichever is the earlier, then the parties will refer the dispute to mediation to be conducted by the Australian Disputes Centre in accordance with its then current mediation rules and guidelines for resolution within 10 days (or such other period agreed between the parties); then
d) if the dispute remains unresolved at the expiry of the 10-day mediation period referred to above (or such other period agreed between the parties), either party will be entitled to commence court proceedings in relation to the dispute.
If a dispute is referred to mediation:
a) any meetings organised will be held in Sydney or such other place as may be agreed by the parties;
b) the parties agree to pay costs as directed by the mediator; and
c) both parties may be represented by a duly qualified legal practitioner.
Either party may immediately terminate this Agreement if:
a) the other party breaches any term or condition of this Agreement and:
b) the defaulting party becomes bankrupt or insolvent, or a liquidator, receiver, receiver and manager, administrator, mortgagee in possession or other external insolvency administrator is appointed, other than for the purposes of reconstruction or reorganisation.
If this Agreement is terminated for any reason:
a) CareerHub will invoice the Client for all work performed and reasonable expenses incurred up to the effective date of termination, which is payable within thirty days of the presentation of a tax invoice;
b) If CareerHub has received payments in advance from the Client, CareerHub will reimburse all monies paid for Services yet to be rendered and the remaining licence term on a pro-rata basis; and
On termination of this Agreement, the Client must discontinue using the Software, from the effective date of termination. These provisions regarding consequences of termination survive termination or expiry of this Agreement.
Any notice given under this Agreement:
a) must be in writing and signed by a person authorised by the sender;
b) must be delivered to the intended recipient by overnight post by an internationally-recognised overnight courier service or by hand to the address set out on the first page, or as otherwise advised by a party;
c) will be taken to be duly given or made:
but if the result is that a notice would be taken to be given or made on a day which is not a business day or is later than 4.00pm (local time), it will be taken to have been duly given or made on the next business day.
“API” means Application Programming Interface.
“Client Data” means any and all data, graphics, photos, designs, trademarks, or artwork furnished by the Client to CareerHub or utilised by Client in conjunction with the Software as well as Personal Information of students enrolled with the Client and Confidential Information of the Client.
“Confidential Information” means information or material that is confidential in nature, marked as confidential or which CareerHub material to the extent it appears in the public domain.
“Personal Information”. For clients located in the ANZ region, it has the same meaning as in the Privacy and Personal Information Protection Act 1998 (NSW) (PIPP Act), the Data Protection Act 2018 for clients in the United Kingdom (DPA 2018), and the Protection of Personal Information Act, No 4 of 2013 (POPI Act) in South Africa.
“Privacy Laws” means the Privacy Act 1988 (Cth) and the Privacy and Personal Information Protection Act 1998 (NSW) (PIPP Act), the Data Protection Act 2018 (DPA 2018), and the Protection of Personal Information Act, No 4 of 2013 (POPI Act).
This contract constitutes the sole Agreement between CareerHub and the Client regarding the Software and Services. This Agreement shall be governed and construed in accordance with the laws of the state of Queensland, Australia, and each party submits to the non-exclusive jurisdiction of the courts of Queensland, Australia for clients located in the ANZ region.
This Agreement shall be governed and construed in accordance with the laws of England and Wales, and each party submits to the non-exclusive jurisdiction of the courts of England and Wales for clients located in the United Kingdom, South Africa or any other region.
Ref ID: OTC8000A
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