Terms & Conditions

PART A
GENERAL PROVISIONS

1. Interpretation

1.1 In these terms and conditions, unless the context otherwise requires:

Additional Charges means the charges, at the Supplier’s rates published by it from time to time, for Additional Services provided by the Supplier.

Additional Services means professional services provided to the Customer, other than the Configuration Services.

Affiliate means a real estate agency owned and operated by an independent operator which lawfully conducts business:

(a) under the Customer’s brand; or
(b)
under another brand where that brand is at least 50% ultimately owned by the Customer.

Agreement Details means the information contained in the document with that heading to which these terms and conditions are attached.

Agreement means the agreement between the Supplier and the Customer of which these terms and conditions form part.

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Sydney.

Business Hours means the hours 9:00am to 5:00pm in Sydney on a Business Day.

Confidential Information means any information concerning the business or affairs of a party, whether or not recorded in a material form, which is marked as being confidential or which, from its content or format, ought to reasonably be treated as being confidential and includes the Supplier Documentation.

Configuration Services means the services provided to the Customer in respect of the set-up, customisation and use of the Reapit Solutions, as described in the Agreement Details.

Corporations Act means Corporations Act, 2001 (Cth).

CRM Solution means the real estate agent CRM solution (provided under a subscription model) as described in the Agreement Details.

Customer means the entity named as Customer in the Agreement Details and includes, where the context so requires, that entity’s holding company, that entity’s subsidiaries, the subsidiaries of that holding company together with permitted sublicensees Franchisees or Affiliates of the Customer.

Customer Content means content (including, without limitation, branding, text, images, livery and directions in relation to “look and feel”) provided by the Customer to the Supplier in relation to the Supplier’s development of the Customer’s website.

Customer Data means all data (including any Personal Information), information, text, drawings, records, documents, Customer Content and other materials which are embodied in any medium which:

(a) are or may be used by the Customer in the course of its use of the Reapit Solutions; or
(b)
are owned or controlled by Customer and to which Supplier has access under the Agreement.

Data Centre means a third party operated data centre, which may be at a location outside Australia, on which the Reapit Solutions are hosted and at which data (including Customer Data) is stored or processed.

Designated Equipment means:

(a) the items of computer hardware and software in the relevant office of the Customer; and
(b)
any other relevant systems (including data network and telecommunications capability use the provision of Remote Access),
which are essential prerequisites for the Customer to access and use the Reapit Solutions and as notified to the Customer by the Supplier.

DM Solution refers to each of the digital marketing solutions (provided under a subscription model) as described in the Agreement Details (being MyAgency, PropertyHub and ProposalPoint).

Effective Date means the date on which the Agreement takes effect in accordance with clause 3.1.

Fees means the fees described in the Agreement Details.

Franchisee means a real estate agency owned and operated by an independent operator which conducts business, under the Customer’s brand, as a franchisee.

Go Live Date means:

(a) In the case of a Customer, who has not been using any of the Reapit Solutions immediately prior to the Effective Date of the Agreement, the date on which the Supplier notifies the Customer in writing of its initial log-in details relating to use of one or more of the Reapit Solutions; and
(b)
In the case of the Customer, who has been using an Reapit Solution immediately prior to the Effective Date of the Agreement, the Effective Date of the Agreement.

Insolvency Event means any of the following events occurring to a party:

(a) it disposes of the whole of its assets, operations or business other than in the normal course of business;
(b)
an arrangement is entered into between it and its creditors other than for the purposes of reconstruction under Part 5.1 or 5.3A of the Corporations Act;

(c)
it ceases pursuant to section 495E of the Corporations Act to be able to pay its debts as they become due;

(d)
a mortgagee enters into possession or disposes of the whole or any part of its assets or business;

(e)
a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person is appointed over the whole or any part of its assets or business; or

(f)
a voluntary administrator is appointed in relation to it.

Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world and includes, without limitation all rights in copyright (including future copyright and rights in the nature of or analogous to copyright), invention (including patents), trademarks, service marks, designs, circuit layouts, plant breeder’s rights, irrespective of whether such rights are registered or capable of
registration.

Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in any relevant jurisdiction and includes the common law and equity as applicable from time to time.

Licence Fee means the fee, referred to in the Agreement Details, for the right to use PM Solution

Master User means a User who is nominated as a Master User by the Customer in the Reapit Solutions and who has the additional use rights provided by the Supplier to Master Users from time to time.

Minimum Period means the period of time specified as the Minimum Period, in respect of the relevant Reapit Solution, in the Agreement Details.

Module means an individual module of the Reapit Solutions, with specific functionality that will be available to the Customer for it to use, as specified in the Agreement Details.

Moral Rights has the meaning given to it in the Copyright Act, 1968 (Cth).

New Release means any amended version of PM Solution.

Personal Information has the same meaning as in the Privacy Legislation.

Personnel means any officers, employees or contractors of a party to the Agreement.

PI Incident means any unauthorised or unlawful use or disclosure of, or accidental loss or destruction of, or damage to Personal Information.

Platform means the cloud-based platform through which Reapit Solutions can be accessed by the Supplier from time to time.

PM Solution means the property management solution (provided under a subscription model) as described in the Agreement Details including any New Release thereof.

Principal means the person, nominated as the Principal of the Customer, as notified
to the Supplier.

Privacy Legislation means the Privacy Act, 1988 (Cth) and any other similar legislation (to the extent that such legislation applies to the Supplier or the Customer) from time to time in force in Australia.

Reapit Solution means the CRM Solution, the PM Solution and the DM Solution, individually or collectively, as the context may require.

Remote Access means the provision by the Customer for the Supplier to remotely access either:

(a) the Customer’s server; or
(b)
such part of any third-party computer infrastructure or interface used by the Customer for the hosting of its applications or processes.

Required Training means the initial training provided by the or on behalf of the Supplier to the Customer in relation to its use of the Reapit Solutions.

Supplier Documentation means the instruction manuals, user guides and other information (technical or non-technical) about the Reapit Solutions provided to the Customer from time to time during term of the Agreement.

Supplier Policy means a policy, procedure or other protocol, relating to the use of the Reapit Solutions, as published by the Supplier from time to time.

Supplier Servers means servers that are under the control of the Supplier.

Technical Support means the provision of technical support, as is specified in respect of the Reapit Solutions in the Agreement Details.

User means a person who is authorised by the Customer to use one or more of the Reapit Solutions.

Voluntary Termination Period means the period of time specified as the Voluntary Termination Period in respect of the relevant Reapit Solution in the Agreement Details.

Website means a website, which is developed by the Supplier for a Customer (whether off-the-shelf or bespoke).

Website Services means the services provided to the Customer in respect of the development, administration, hosting and maintenance of a Customer’s Website, as described in the Agreement Details (and including management of domain names).

2. In the Agreement, unless the context otherwise requires:

(a) words denoting any gender includes all genders;
(b)
headings are for convenience only and do not affect interpretation;

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

(d)
references to including or includes is deemed to have the words without limitation inserted after them;

(e)
a reference to a party includes its successors and permitted assigns;

(f)
a reference to a person includes a natural person, corporate or incorporated body (whether or not having separate legal personality) and that person’s successors or permitted assigns; and

(g)
reference to a statute includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.

3. The Agreement is not to be interpreted against the interests of a party merely because that party proposed the Agreement or some provision of it or because that party relies on a provision of the Agreement to protect itself.

4. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

2. Introduction to Part A

2.1. Part A provides the terms which apply to the Customer’s right to access and use the Reapit Solutions.

2.2. The Agreement is not intended to address every issue raised by the use of the Reapit Solutions. The Supplier reserves the right to:

(a) introduce, by posting on the Platform, Supplier Policies to address issues that do arise with the use of the Reapit Solutions; and
(b)
changes previously posted Supplier Policies at any time, effective upon the posting of the modified policies on the Platform.

It is the Customer’s obligation to ensure that it monitors the Platform and complies with Supplier Policies.

2.3. The Customer acknowledges that:

(a) the Reapit Solutions have not been developed to meet the individual requirements to the Customer; and
(b)
it has had the opportunity to evaluate and satisfy itself about the features and operation of the Reapit Solutions.

3. Term

3.1. The Agreement becomes effective when it is signed by both the Supplier and the Customer.

3.2. The Agreement may not be terminated by the Customer prior to the Go Live Date.

3.3. If the Supplier is not in breach of the Agreement and if the Customer terminates or purports to terminate the Agreement before the expiry of the Minimum Period, then the Customer must pay to the Supplier all Fees payable to the Supplier up to the end of the Minimum Period within 30 days after notice of termination or purported termination, unless otherwise agreed in writing by the Supplier.

3.4. After the expiry of the Minimum Period, either the Supplier or the Customer may terminate the Agreement by giving to the other no less than 30 days’ written notice.

4. Fees and Payment

4.1. The Customer will pay the Fees at the times and in the manner specified in the Agreement Details without any deduction or set off. Certain Fees are non-refundable (as specified in the Agreement Details).

4.2. Fees applying in respect of part of a month will be calculated on a pro rata basis from the start or the end of the month as required.

4.3. The Customer’s obligation to pay Fees (other than the Configuration Fee) commences on the earlier of the Go Live Date and the date which is 45 days after the date on which the Agreement becomes effective unless another date is agreed in writing by the Customer and the Supplier.

4.4. If a Fee is not paid by the Customer by the due date for payment the outstanding Fee accrues interest from the date of the invoice to the date payment is received at the rate of 12% per annum. Overdue payments and accrued interest are payable on demand.

4.5. Fees will be increased by the Supplier with effect from 1 January in each year. The Fees will be increased by not less than the sum of the total increase in the Consumer Price Index (All Groups, Sydney) over the preceding 12-month period plus 2%.

4.6. All Fees must be paid by the provision of an authority enabling the Supplier to directly debit the Customer’s bank account or credit card for amounts due to the Supplier. The Supplier will not accept payment of Fees by cheque or electronic funds transfer originated by the Customer.

4.7. The Customer will, in addition to any other amounts specified in the Agreement, reimburse, on demand, to the Supplier:

(a) any charge incurred by the Supplier relating to a rejection of a Customer’s payment to the Supplier; and
(b) any reasonable third-party costs it incurs in the collecting or attempting to collect any outstanding Fees from the Customer.

4.8. If any Fees have the benefit of a discount (as specified in the Agreement Details), that discount is only applicable during the applicable Minimum Period unless otherwise expressly agreed in writing by the Supplier and the Customer.

5. Confidentiality

5.1. Each party must treat and ensure that its Personnel treat, as confidential, the Confidential Information of the other party.

5.2. The party who receives Confidential Information from the other party must not without the prior written consent of the other party:

(a) use that Confidential Information except in performing its obligations or exercising its rights under the Agreement or as otherwise specified in the Agreement; or
(b)
disclose it to any person except its Personnel and then only to those Personnel who need to know the same

5.3. The exceptions are where:

(a) disclosure is required by Law;
(b)
Confidential Information is in the public domain through no fault or action of the recipient or its Personnel; or

(c)
Confidential Information was received by the recipient on a non-confidential basis from a third party who is entitled to disclose it.

6. Technical Support and Training

6.1. The Supplier will provide Technical Support to the Customer through the Supplier’s nominated support portal during Business Hours.

6.2. The Supplier will use reasonable endeavours to respond to a request for Technical Support during the same Business Day that the request is made.

6.3. Technical Support does not include diagnosis and rectification of any fault which results from (as determined by the Supplier in its absolute discretion):

(a) the improper use or operation of the Reapit Solutions;
(b)
the improper use or operation of Designated Equipment where that use causes PM Solution to fail to perform;

(c)
the modification of PM Solution or its integration (in whole or in part) with any other software by any person other than by the Supplier where the same causes PM Solution to fail to perform;

(d)
the failure by the Customer to implement recommendations in respect of, or solutions to faults previously notified by the Supplier in writing;

(e)
use by the Customer of a version of the PM Solution which is older than two releases prior to the current version;

(f)
any repair, adjustment, alteration or modification of PM Solution by any person other than the Supplier without the Supplier’s prior written consent;

(g)
any failure by the Customer to maintain the Designated Equipment which directly or indirectly causes PM Solution to malfunction or cease to function;

(h)
the use of the Reapit Solutions for a purpose for which they were not designed;

(i)
a request for Technical Support made in circumstances where a reasonably skilled and competent data processing operator would not make the request; or

(j)
inaccurate data entry.

6.4. The Supplier may at its sole discretion upon request by the Customer, provide (as Additional Services) Technical Support notwithstanding that the fault results from any one or more of the circumstances described in clause 6.3. Additional Charges will be payable for the provision of Technical Support in these circumstances.

6.5. The Customer must provide the Supplier with Remote Access to PM Solution for the purposes of Technical Support. If for any reason Remote Access is not available, Additional Charges will be payable for the provision of Technical Support in these circumstances.

6.6. The Supplier reserves the right to remotely monitor the usage and performance of the Reapit Solutions.

6.7. The Supplier reserves the right to temporarily suspend the provision of Technical Support to specific User(s) if, in the Supplier’s reasonable opinion, the applicable User(s) have not been trained sufficiently and/or do not have the capability to use the Reapit Solutions without unreasonable use of the Technical Support services. Before exercising this right, the Supplier will discuss the relevant circumstances with the
Customer in good faith and attempt to agree to a resolution.

6.8. The Supplier reserves the right to limit or suspend Technical Support if Users do not complete the Required Training to the satisfaction of the Supplier.

6.9. The Supplier is entitled to rely on requests and/or directions received from a Master User without further verification from the Customer and, in doing so, the Supplier has no liability to the Customer.

6.10. If, as part of the Configuration Services, the Supplier provides any training, including Required Training, this training will be delivered remotely via a telephone/video conference at a time agreed to between the Customer and the Supplier on a train the trainer basis.

6.11. Further training can be sourced, by the Customer from the Supplier, as an Additional Service.

7. Customer Data

7.1. The Customer grants to the Supplier and its authorised Personnel a royalty-free and non-exclusive licence for the term of the Agreement to use Customer Data for the purpose of providing the Reapit Solutions, Configuration Services and Additional Services to the Customer.

7.2. The Supplier must, and will ensure that its Personnel, store, copy or use Customer Data only to the extent necessary to perform its obligations under the Agreement.

7.3. The Customer must, and will ensure that Users, comply with all Laws when:

(a) accessing and uploading Customer Data to the Platform; and
(b)
using the Modules.

7.4. The Customer must not, and will ensure that Users do not, provide or upload Customer Data (or permit any Customer Data to be provided or uploaded) to the Reapit Solutions unless it is the owner of, or has the authority to upload, the Customer Data.

7.5. Where the Customer transfers Customer Data to the Supplier, whether as part of the Reapit Solutions or otherwise, the Customer warrants to the Supplier that:

(a) it has the right to transfer such Personal Information to the Supplier; and
(b)
it has secured a lawful basis, in accordance with and to the extent required by applicable Privacy Legislation, to process such Personal Information and to share such Personal Information with the Supplier.

7.6. The Customer indemnifies the Supplier for any Losses incurred as a result of:

(a) a claim by a third party whose Personal Information has been provided by or on behalf of the Customer to the Supplier, that there is no lawful basis of processing that Personal Information in accordance with the terms of the Agreement; and
(b)
a breach by the Customer of its warranty in clause 7.5.

7.7. The Supplier is entitled to process and use Customer Data for the purpose of statistical analysis but must not publish any document in a manner which identifies the Customer Data used in preparation of the analysis.

8. Intellectual Property Rights

8.1. All Intellectual Property Rights vested in a party prior to the Effective Date, including all enhancements and modifications to those Intellectual Property Rights, remain vested in that party. Intellectual Property Rights do not transfer from one party to another as a result of the parties entering into the Agreement.

8.2. If a claim is made by a third party against the Customer that its access to and use of the Reapit Solutions infringed the Intellectual Property Rights of a third party in Australia (each an IP Claim), the Customer must:

(a) promptly give written notice to the Supplier together with all details about that IP Claim; and
(b)
fully cooperate with the Supplier who will have complete and sole authority in directing any defence, compromise or settlement of that IP Claim.

8.3. The Supplier may modify, limit, suspend or terminate the Customer’s access to the Reapit Solutions (or any part of them, as applicable), without any liability, in response to an IP Claim.

8.4. The Supplier will indemnify and hold harmless the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of IP Claim provided that the Customer:

(a) promptly gives notice to the Supplier of any Intellectual Property Infringement upon becoming aware of the same;
(b)
gives the Supplier the sole conduct of the defence to any IP Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the IP Claim except upon the express instructions of the Supplier; and

(c)
acts in accordance with the reasonable instructions of the Supplier and gives to the Supplier such assistance as it reasonably requires the conduct of the defence to the IP Claim (including filing of pleadings and other court process and the provision of all relevant documents).

8.5. The Supplier will reimburse the Customer its reasonable and verifiable costs incurred in complying with the provisions of clauses 8.28.2(a) and 8.28.2(b).

8.6. The Supplier is not liable to defend or indemnify the Customer in respect of an IP Claim if the claim arises from or in connection with:

(a) any breach of the Customer’s obligations under these terms and conditions;
(b)
the use of the Reapit Solutions in combination with any other software or system not approved in writing by the Supplier;

(c)
any software, equipment, materials, documents or data supplied by a person other than the Supplier;

(d)
the Supplier’s compliance with any technical design or written instructions provided by the Customer;

(e)
the inclusion of any Open Source Software in any materials delivered to Customer by Customer (but only where the Customer has approved the use of such Open Source Software in writing);

(f)
the Customer’s use or modification of the Reapit Solutions and/or the Supplier Documentation – in a manner which is not approved in writing by the Supplier.

8.7. In the event of an IP claim, the Supplier is entitled to (at its own expense and option):

(a) procure the right for the Customer to continue using the Reapit Solutions; and/or
(b)
make such alterations modifications or adjustments to Reapit Solutions so that they become non-infringing without incurring a material diminution in performance or function; and/or
(c) replace the Reapit Solutions in whole or in part with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

8.8. If the Supplier in its reasonable judgement is not able to exercise any of the options set out in clause 8.7 within 90 days of the date it received notice of the IP Claim, the Supplier may terminate the Agreement by written notice to the Customer.

9. Personal Information

9.1. The Supplier:

(a) will, in relation to Personal Information (forming part of Customer Data) processed in connection with the Agreement, process such Personal Information in accordance with applicable Privacy Legislation.
(b)
may subcontract processing of Personal Information (forming part of Customer Data) to contractors outside Australia; and

(c)
must procure that any such sub-contractors enter into a written contract with the Supplier which:

  • (i) contains obligations for the protection of Personal Information which
    are no less onerous than those set out in the Agreement
  • (ii) entitles such sub-contractors to only hold the applicable Personal
    Information for the duration of the processing; and
  • (iii) requires them to destroy the applicable Personal Information once the
    task is finalised.

9.2. Where the Supplier collects, holds, uses or discloses Personal Information (forming part of Customer Data) in the course of or relating to the Agreement, it must:

(a) take all reasonable and appropriate technical and organisational measures to prevent a PI Incident;
(b)
not disclose Personal Information to any third party (including any sub-contractor):

  • (i) without the Customer’s prior written consent; or
  • (ii) unless required by Law; and

(c) not engage in any act or practice in relation to the Personal Information (forming part of Customer Data) that would cause the Customer to be in breach of the Privacy Legislation.

9.3. The Supplier undertakes to take each of the following actions if it becomes aware, or there are reasonable grounds to suspect, that a PI Incident has occurred:

(a) immediately take any steps to contain and resolve the PI Incident and preventing any further serious harm to affected individuals;
(b)
promptly notify the Customer in writing stating:

  • (i) the nature and details of the Data Incident;
  • (ii) the specific Personal Information affected;
  • (iii) the actions taken by the Supplier including those required at clause10.3(a); and
  • (iv) the recommended next steps for each of the parties;

(c) investigate of the PI Incident; and
(d)
report on the outcomes of the investigation.

9.4. The Customer is responsible to obtain any necessary consents with respect to Personal Information uploaded or processed by Customer using the Reapit Solutions.

9.5. If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Information by the other party or to either party’s compliance with the applicable Privacy Legislation arising from or connected with the use of the Reapit Solutions, it must promptly notify the other party and it must provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.

9.6. Where the Customer transfers Personal Information to the Supplier, whether as part of the Reapit Solutions or otherwise, the Customer warrants to the Supplier that:

(a) it has the right to transfer such Personal Information to the Supplier; and
(b)
it has secured a lawful basis, in accordance with and to the extent required by applicable Privacy Legislation, to process such Personal Information and to share such Personal Information with the Supplier.

9.7. Where the Supplier stores or processes Personal Information using Supplier Servers located at Data Centres which are located outside Australia, it will take reasonable steps to ensure there are arrangements in place to protect Personal Information. The Customer agrees to and authorises the Supplier to transfer Personal Information, in accordance with the Agreement, to a third party who is not in Australia or a third party who may transfer and store outside Australia the Personal Information.

10. Customer Obligations

10.1. The Customer is responsible for obtaining and maintaining, at its cost, any and all Designated Equipment and ancillary software and services needed to connect to, access or otherwise use the Reapit Solutions.

10.2. The Customer must only to use the Reapit Solutions, that are the subject of the Agreement:

(a) for the lawful purposes for which they are intended; and
(b)
in a way that does not infringe the rights of, restrict or inhibit anyone else’s use of them.

10.3. The Customer is responsible for:

(a) Solutions and the level of access (being the Users);
(b)
controlling the level of access given to Users;

(c)
resolving any issues that Users have with their level of access;

(d)
revoking or adjusting the level of the access of any of the Users;

(e)
the use to which the Users put the Reapit Solutions;

(f)
setting up and launching use of the Reapit Solutions except to the extent to which the Supplier agrees to assist the Customer do so; and

(g)
providing sufficient (having regard to the nature of the Customer’s business) telecommunications bandwidth and security for the computer network by which CRM Solution is accessed or on which PM Solution is installed.

10.4. Unless otherwise permitted by the Law, the Customer must not (and must ensure that Users do not):

(a) resell, reframe, distribute or on-sell the Reapit Solutions or the Supplier Documentation;
(b)
include the Reapit Solutions in any service bureau or outsourcing or managed service offering;

(c)
modify or adapt or create copies or derivative works of the Reapit Solutions or the Supplier Documentation;

(d)
reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Reapit Solutions or the Supplier Documentation;

(e)
build an application or service that is competitive with the Reapit Solutions or any of them;

(f)
use the Platform to access services other than the Modules the Customer is authorised to use

(g)
assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Reapit Solutions or the Supplier Documentation to any third party;

(h)
remove or alter any copyright or other proprietary notice on the Reapit Solutions or the Supplier Documentation;

(i)
sub-licence, assign, novate or otherwise part with the benefit or burden of the Agreement in whole or in part;

(j)
allow PM Solution to become the subject of any charge, lien, security interest for the purposes of the Personal Property Securities Act, 2009 (Cth);

(k)
engage in any illegal, unethical or immoral conduct using the Reapit Solutions or any of them;

(l)
bypass or attempt to bypass any of the features of the Reapit Solutions designed to exclude robots, spiders or scraping applications;
(m) manipulate, damage, interfere with or impair the functionality of the Reapit Solutions or any of them or any other computer systems or networks (including, without limitation, by way of hacking, uploading of harmful code, using cheats, exploits, automation software, bots or similar software);
(n)
disrupt, overburden or assist in such disruption or overburdening of any computer server or network (including, without limitation, those used to provide the Reapit Solutions or any of them);

(o)
engage in any behaviour that is likely to harass, abuse, harm, threaten any person or group of persons (including, without limitation, any activity that degrades a person based on their religion, gender, age or sexuality) or incites or is likely to incite any such activity; and/or

(p)
engage in any behaviour that is misleading or deceptive or is intended to
mislead or deceive any person.

10.5. The Customer is responsible for managing issue, supervision and security of passwords issued to Users and must take all other actions as the Supplier reasonably instructs to maintain or enhance the security of the Reapit Solutions and Users’ access thereto.

10.6. The Customer must comply with:

(a) the Supplier Policies; and
(b)
any instructions given to the Customer by the Supplier in the Supplier Documentation.

10.7. The Customer must take all reasonable precautions to ensure that it maintains the security of its access to the Reapit Solutions. Without limiting the generality of this obligation, the Customer must not allow any person other than a User to access/use the Reapit Solutions.

10.8. The Customer is responsible for User’s use of the Reapit Solutions. Accordingly, the Customer:

(a) must ensure all Users comply with the Agreement and the Supplier Policies;
(b)
must co-operate with the Supplier in all matters relating to the Agreement and the Supplier Policies;

(c)
must provide in a timely manner such information as the Supplier may request and ensure that all such information is complete and accurate in all material respects;

(d)
must implement and enforce a policy which prohibits the sharing or use of any single User login by more than one person;

(e)
must ensure that its network and systems comply with any prerequisite technical specifications specified by the Supplier;

(f)
agrees to be liable for any acts or omissions of Users;

(g)
agrees to be solely responsible for procuring and maintaining Designated Equipment, and data links from its systems to any third party’s data centres, and all problems, conditions, delays delivery failures and all loss or damage arising from or relating to the Customer’s Designated Equipment, and data
links;

(h)
agrees to be solely responsible for the selection of the Designated Equipment to ensure it is suitable to meet the individual requirements of the Customer; and

(i)
agrees to be solely responsible for all problems, conditions, delays, delivery failures and all loss or damage arising from or relating to the Designated Equipment.

10.9. If the Supplier’s performance of its obligations is prevented or delayed by any act or omission of the Customer, the Customer is liable to pay the Supplier on demand all reasonable costs, or losses incurred by the Supplier arising from that prevention or delay.

11. Indemnity

11.1. The Customer indemnifies the Supplier and its Personnel (those indemnified) for any losses, damages, costs and/or expenses incurred or sustained by those indemnified or asserted against those indemnified as a result of:

(a) the death or illness of, or personal injury to, any individual caused by an act or omission of the Customer;
(b)
the loss or destruction of, or damage to, any tangible property caused by an act or omission of the Customer;

(c)
negligent or unlawful conduct of the Customer, or its Personnel; and

(d)
the breach of, or failure to comply with applicable Laws by the Customer, or its Personnel.

11.2. The Supplier indemnifies the Customer and its Personnel (those indemnified) for any losses, damages, costs and/or expenses incurred or sustained by those indemnified or asserted against those indemnified as a result of:

(a) the death or illness of, or personal injury to, any individual caused by an act or omission of the Supplier;
(b)
the loss or destruction of, or damage to, any tangible property;

(c)
negligent or unlawful conduct of the Supplier, or its Personnel; and

(d)
the breach of, or failure to comply with applicable Laws by the Supplier, or its Personnel.

12. Supplier Liability

12.1. Terms, conditions, warranties and guarantees implied by Law, which cannot be excluded, restricted or modified apply to the Agreement to the extent required by that Law. The Supplier excludes to the extent permitted by Law all other terms, conditions, warranties and guarantees which might be implied into the Agreement.

12.2. Nothing in the Agreement excludes or limits either party’s liability:

(a) for fraud by it or its Personnel;
(b)
for death or personal injury caused by its negligence or that of its Personnel; or

(c)
to the extent that any Laws preclude or prohibit any exclusion or limitation of liability.

12.3. Where it is not lawful for the Supplier to limit its liability in accordance with clause 12.7 then the Supplier’s sole liability for breach of contract, breach of statutory duty, negligence or other tort is limited, at its option, to:

(a) the supplying again of the Reapit Solutions; or
(b)
the payment of the cost of having the Reapit Solutions replaced.

12.4. The Supplier does not warrant that use of Reapit Solutions will be uninterrupted or error free.

12.5. The Customer does not rely on any representation, warranty or other provision made by the Supplier or on its behalf which is not expressly stated in the Agreement.

12.6. The Supplier is not liable for loss or corruption of Customer Data, interruption to business or wasted management/administrative time.

12.7. To the extent permitted by Law, the maximum aggregate liability of the Supplier arising out of the Agreement, including for breach, in negligence or in tort or for any common law or statutory action, is limited to the equivalent of the aggregate Fees paid by the Customer to the Supplier in the six month period immediately preceding the date on which the date on which the event, giving rise to the Customer’s cause of action, occurred or where there is a series of such events the first of them.

12.8. Neither party is liable to the other party for any loss of business; loss of revenue; loss of profits; loss of anticipated savings or loss of goodwill, in each case whether arising from breach of contract, negligence, under any indemnity or otherwise.

13. Termination/Suspension

13.1. The Supplier may terminate the Customer’s right to use the Reapit Solutions (such notice to take effect immediately) if one or more of the following events occurs:

(a) Fees that have become payable in accordance with the Agreement, are not paid in accordance with the Agreement and remain unpaid for a period of more than 30 days;
(b)
the Customer is in breach of any of its obligations under the Agreement; or

(c)
the Customer is or becomes, or threatens to become, subject to an Insolvency Event

13.2. Subject to receiving full and prompt payment by Customer of all outstanding unpaid Fees, Supplier will, for 30 days after the date of termination and within 21 days of the Customer’s written request, make available to the Customer the Customer Data in a format which is reasonably accessible by Customer. After 30 days, Supplier has no obligation to retain any Customer Data

13.3. Supply of the data in clause 13.2 is subject to the payment of a Data Extraction Fee which must be paid upfront in its entirety prior to the data being extracted.

13.4. Termination is without prejudice to any other rights or remedies a party may be entitled to under these terms and conditions or at Law and does not affect any accrued rights or liabilities of either party. On termination the Customer must immediately cease to access and use the Modules.

13.5. Without prejudice to any other right or remedy the Supplier may have, if the Customer is in breach of its obligations under these terms and conditions, the Supplier may suspend (without prior notice) the Customer’s use of the Reapit Solutions until the breach has been remedied to the Supplier’s satisfaction.

13.6. If the Customer’s right to use the Reapit Solutions, is suspended then the Customer must continue to pay the Fees therefor during the period of suspension.

14. Notices

14.1. Any notice or other communication by the Supplier or the Customer must be in legible writing and in English.

14.2. Notices may be delivered in person or sent by post or by sent by email.

14.3. Notices may be sent by the Supplier to the Customer by email to the email address of the User or Principal (as the case may require) as determined by the Supplier in its absolute discretion as being the reasonably appropriate recipient for the subject-matter of the notice.

14.4. Any notice or other communication is regarded as having been given by the sender and received by the recipient:

(a) if by delivery in person- when delivered;
(b)
if by email, at noon on the Business Day following the day on which it is sent, provided that the sender has not received a message to the effect that email was not delivered or that the recipient is ‘out of office.’

15. General

15.1. The Customer grants to the Supplier a royalty-free, worldwide, irrevocable, perpetual licence to use and incorporate into Reapit Solutions any suggestions, enhancement requests, recommendations or other feedback provided by the Customer to the Supplier.

15.2. All sums payable under the Agreement are exclusive of GST for which the Customer is responsible. Any GST arising in respect of any supply made must be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable.

15.3. The Supplier may amend the terms of the Agreement from time to time as it sees fit by notification on its website and/ or email or other communication to the Customer. Any changes will become effective within 60 days after the notification.

15.4. If either party wishes to commence any action against the other arising out of the Agreement (Litigation) (excluding an action by the Supplier against the Customer arising from non- payment of Fees), prior to initiating the Litigation such party must give the other written notice of the dispute and the parties must actively and in good faith negotiate with a view to speedy resolution of such dispute within 20 Business Days of the notice being given.

15.5. The Supplier is entitled to recover from the Customer all legal and other costs incurred by the Supplier in recovering or attempting to recover from the Customer any unpaid Fees.

15.6. The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the subject matter.

15.7. The Customer must, at its own cost, promptly sign all such documents and do all such things, as the Supplier may from time to time reasonably require for the purpose of giving full effect to the provisions of the Agreement.

15.8. Nothing in the Agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of the other party.

15.9. The Agreement may be signed in counterparts. Each counterpart constitutes an original of the Agreement, but all the counterparts together constitutes but one and the same instrument.

15.10. Delivery of a signed copy of the Agreement by electronic means will have the same effect as delivery of the physical copy bearing the original signature, provided that such copy, on receipt, can be reproduced in an eye-readable form. Signing of the Agreement by means of a digital, electronic signature is deemed, for all purposes, to have the same legal effect as signing of a physical copy.

15.11. If any provision of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision must not affect the other provisions of the Agreement. All provisions not affected by such invalidity or unenforceability remain in full force and effect.

15.12. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

15.13. The Agreement is binding upon and ensues for the benefit of the successors in title of the Supplier and the Customer.

15.14. The waiver by either party of a breach or default of any of the provisions of the Agreement by the other party is not to be construed as a waiver of any succeeding breach of the same or other provisions nor must any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have under the Agreement operate as a waiver of any breach or default by the other party. No single or partial exercise of any right or remedy provided under this Agreement or by Law, whether by conduct or otherwise, precludes or restrict the further exercise of that or any other right or remedy.

15.15. The Customer is not entitled to assign or otherwise transfer the Agreement nor any of its rights or obligations under the Agreement without the prior written consent of the Supplier.

15.16. The Supplier may at any time sub-licence, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Agreement, provided that it gives written notice of the same to the Customer.

15.17. The provisions of clauses 1, 4.4, 4.7, 5, 7, 8, 9, 11, 12, 14, 15, 32 and 34 survive termination or expiry of the Agreement.

15.18. The Agreement is governed by the Laws of the State of New South Wales. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with all matters concerning the Agreement.

PART B
PROVISIONS RELATING TO USE OF THE CRM SOLUTION

16. Introduction to Part B

16.1. Part B governs the Customer’s non-exclusive right to access and use CRM Solution and is in addition to the provisions of Part A.

16.2. To the extent there is a conflict between a provision in Part B and a provision in Part A, the provision in Part B will prevail and take precedence, but only to the limited extent necessary to resolve the conflict.

16.3. The Customer must (and will ensure that its Personnel) only access the Platform and use the Modules for its internal business use in accordance with the Agreement and the Supplier Policies.

16.4. The Supplier may enhance and/or alter the features of CRM Solution in its absolute and unfettered discretion for the purpose of making improvements to the Configuration Services.

16.5. The Supplier may, at its discretion, provide Additional Services to the Customer at its request and pursuant to a written agreement which describes the Additional Services to be provided and the Additional Fees payable by the Customer to the Supplier for those Additional Services.

16.6. Fees for use of different Modules associated with CRM Solution will commence on the Go Live date applicable to each Module.

16.7. After expiry of the Minimum Period, the Agreement will continue in respect of CRM Solution until the Agreement is terminated by either the Supplier or the Customer giving to the other prior written notice which will take effect at the expiry of the Voluntary Termination Period.

17. Accessing CRM Solution

17.1. The Supplier grants to the Customer the non-exclusive right to access and use CRM Solution and the Supplier will take all steps to enable the Customer to do so on and from the Go Live Date.

17.2. The Customer is responsible for setting up and revoking User access rights and for this purpose notifying the Supplier of any changes to users. No billing adjustments will be made without such notice.

17.3. The Supplier may, if requested by the Customer, make available to Affiliates of the Customer separate accounts for the use of CRM Solution to enable such Affiliates to make their own use of CRM Solution independent of the Customer.

17.4. CRM Solution is hosted on Supplier Servers installed at Data Centres. The availability of the Platform (including business continuity and data recovery measures) is under the control of the Data Centres. The Data Centres are responsible for physical and cyber security.

18. Availability

18.1. The Supplier will:

(a) provide the Configuration Services as set out in the Agreement Details; and
(b)
enable the Customer to access the configured CRM Solution 24 hours a day, seven days a week.

18.2. The Supplier is not liable for any downtime of CRM Solution caused by circumstances beyond the Supplier’s reasonable control. These circumstances include, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, internet service provider failure s or delays or denial of service attacks.

18.3. From time to time the Supplier will need to conduct preventative and remedial maintenance in respect of the CRM Solution (Scheduled Maintenance). The Supplier will endeavour to carry out all Scheduled Maintenance outside usual Business Hours and to give reasonable notice of any planned downtime for Agentbox Sales CRM. In the event of an emergency, the Supplier may carry out maintenance during usual Business Hours and without first notifying the Customer.

PART C
PROVISIONS RELATING TO USE OF THE PM SOLUTION

19. Introduction to Part C

19.1. Part C governs the Customer’s non-exclusive right to access and use PM Solution and is in addition to the provisions of Part A.

19.2. To the extent there is a conflict between a provision in Part C and a provision in Part A, the provision in Part C will prevail and take precedence, but only to the limited extent necessary to resolve the conflict.

19.3. After expiry of the Minimum Period, the Agreement will continue in respect of PM Solution until the Agreement is terminated by either the Supplier or the Customer giving to the other prior written notice which will take effect at the expiry of the Voluntary Termination Period.

20. Licence and Services

20.1. The Supplier during the term of the Agreement:

(a) grants to the Customer a non-exclusive licence to use PM Solution (and where appropriate the Supplier Documentation) upon the Designated Equipment and for the designated number of Users only; and
(b)
will provide to the Customer such Additional Services as may be agreed from time to time.

20.2. The Supplier may from time to time issue a New Release to the Customer which the Customer must accept and implement in accordance with Supplier’s instructions.

20.3. The Supplier is under no obligation to provide a New Release in respect of any version of PM Solution which:

(a) is no longer supported by the Supplier; and
(b)
has been superseded by newer versions of the Licensed Software.

20.4. The Supplier will provide to the Customer such Additional Services as may be agreed from time to time.

20.5. Customer Data, that is provided by the Customer to the Supplier in relation to the Customer’s use of PM Solution, will be stored by the Supplier in a Data Centre.

21. Licence Fee Calculation

21.1. If additional Users or Properties Under Management are enabled, then the Licence Fee will be increased appropriately to take account of the additional Users or Properties Under Management from date of the installation of PM Solution.

21.2. The Customer may activate an additional User inside the portal subject to payment of the additional Licence Fee in relation to the additional User.

21.3. In the event of termination of the Agreement, the number of Users and/or Properties Under Management applicable to any termination notice period will be the number of Users and/or Properties Under Management as at the date notice of termination is given or deemed to take effect.

22. Delivery, Installation, Testing and Acceptance

22.1. The Supplier will:

(a) enable remote installation of PM Solution (or deploy such other method of installation as the Supplier may in its absolute discretion determine) onto the Customer’s Designated Equipment; and
(b)
provide the Configuration Services.

22.2. If the Customer fails to provide the Supplier with information, access, (including Remote Access), data, or hardware that it requires to deliver PM Solution by the Go Live Date, the Supplier in its absolute discretion is entitled to:

(a) terminate the Agreement with immediate effect; or
(b)
notify the Customer of a revised Go Live Date as it thinks fit.

In either event the Customer may be charged for the time reasonably spent by the Supplier (from the Effective Date to the date of expiry of the notice served in accordance with this clause 23.2) for which Additional Charges will be payable.

22.3. If the Supplier stores Customer Data on servers controlled by the Supplier, then the Supplier will back-up the data and make those back-ups available to Customer within a reasonable time after receiving a written request and subject to payment by Customer of a reasonable agreed fee.

22.4. The Supplier implements reasonable policies and procedures to prevent data loss but does not guarantee that there will be no loss of Customer Data. The Supplier expressly excludes liability for any loss or corruption of Customer Data no matter how caused.

23. Availability

23.1. The Supplier is not liable for any downtime of PM Solution caused by circumstances beyond the Supplier’s reasonable control. These circumstances include, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, internet service provider failures or delays or denial of service attacks.

23.2. From time to time the Supplier will need to conduct preventative and remedial maintenance in respect of the PM Solution (Scheduled Maintenance). The Supplier will endeavour to carry out all Scheduled Maintenance outside usual Business Hours and to give reasonable notice of any planned downtime for PM Solution. In the event of an emergency, the Supplier may carry out maintenance during usual Business Hours and without first notifying the Customer.

24. Additional Customer Obligations

24.1. The Customer must:

(a) reproduce the Supplier’s copyright and trademark notices on any copy (whether in machine readable or human readable form) of PM Solution and Supplier Documentation; and
(b)
notify the Supplier immediately if PM Solution or any part of those materials are made available to any office of the Customer that is not in the Agreement Details and pay for extending of the scope of the licence granted under the Agreement – such payment in respect of the period of unauthorised use, to be an amount equal to the Licence Fee which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 4.4 to the date of payment.

24.2. The Customer must permit the Supplier to inspect and have access to:

(a) any premises (and to the Designated Equipment, located there) at or on which PM Solution is being hosted or used; and
(b)
any records kept by the Customer in connection with the Agreement,
for the purposes of ensuring that the Customer is complying with the terms of the Agreement, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which must take place at reasonable times.

PART D
PROVISIONS RELATING TO USE OF THE DM SOLUTION

25. Introduction to Part D

25.1. Part D governs the Customer’s non-exclusive right to access and use DM Solution and is in addition to the provisions of Part A.

25.2. To the extent there is a conflict between a provision in Part D and a provision in Part A, the provision in Part D will prevail and take precedence, but only to the limited extent necessary to resolve the conflict.

25.3. The Customer must (and will ensure that its Personnel) only access and use the DM Solution for its internal business use in accordance with the Agreement and the Supplier Policies.

25.4. The Supplier may enhance and/or alter the features of DM Solution in its absolute and unfettered discretion for the purpose of making improvements to the Configuration Services.

25.5. The Supplier may, at its discretion, provide Additional Services to the Customer at its request and pursuant to a written agreement which describes the Additional Services to be provided and the Additional Fees payable by the Customer to the Supplier for those Additional Services.

25.6. Fees for use of different Modules associated with the DM Solution will commence on the Go Live date applicable to each Module.

25.7. After expiry of the Minimum Period, the Agreement will continue in respect of the DM Solution until the Agreement is terminated by either the Supplier or the Customer giving to the other prior written notice which will take effect at the expiry of the Voluntary Termination Period.

26. Accessing DM Solution

26.1. The Supplier grants to the Customer the non-exclusive right to access and use DM Solution and the Supplier will take all steps to enable the Customer to do so on and from the Go Live Date.

26.2. The Customer is responsible for setting up and revoking User access rights and for this purpose notifying the Supplier of any changes to users. No billing adjustments will be made without such notice.

26.3. The Supplier may, if requested by the Customer, make available to Affiliates of the Customer separate accounts for the use of DM Solution to enable such Affiliates to make their own use of DM Solution independent of the Customer.

26.4. The DM Solution is hosted through Data Centres. The availability of the DM Solution (including business continuity and data recovery measures) is under the control of the Data Centres. The Data Centres are responsible for physical and cyber security.

27. Availability

27.1. The Supplier will:

(a) provide the Configuration Services as set out in the Agreement Details; and
(b)
enable the Customer to access the configured DM Solution 24 hours a day, seven days a week.

27.2. The Supplier is not liable for any downtime of DM Solution caused by circumstances beyond the Supplier’s reasonable control. These circumstances include, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, internet service provider failure s or delays or denial of service attacks.

27.3. From time to time the Supplier will need to conduct preventative and remedial maintenance in respect of the DM Solution (Scheduled Maintenance). The Supplier will endeavour to carry out all Scheduled Maintenance outside usual Business Hours and to give reasonable notice of any planned downtime for the DM Solution. In the event of an emergency, the Supplier may carry out maintenance during usual Business Hours and without first notifying the Customer.

28. PropertyHUB

28.1. If the Customer’s subscription includes use of PropertyHUB, its use is on the conditions that:

(a) transmission of the Customer’s property information automatically to third party websites is at all times at the Customer’s sole risk;
(b)
the Supplier has no liability resulting from the transmission of such information to third party websites; and

(c)
if a third-party website charges fees in relation to the listings, the Customer (and not the Supplier) is liable for these fees.

PART E
PROVISIONS RELATING TO THE WEBSITE SERVICES

29. Introduction to Part E

29.1. Part E governs the Customer’s non-exclusive right to access and acquire the benefit of the Website Services.

29.2. The Website Services will be scoped and priced in the Agreement Details.

29.3. To the extent that the Website Services provided to the Customer includes domain name management, these services will include:

(a) domain name acquisition and renewal;
(b)
DNS to manage the DNS records for the Customer’s domain name (if the Customer acquires rights to use a domain name using the Supplier’s services); and

(c)
domain names re-directed to the Customer’s Website.

29.4. To the extent there is a conflict between a provision in Part E and a provision in Part E, the provision in Part E will prevail and take precedence, but only to the limited extent necessary to resolve the conflict.

29.5. The Supplier may, at its discretion, provide Additional Services to the Customer at its request and pursuant to a written agreement which describes the Additional Services to be provided and the Additional Fees payable by the Customer to the Supplier for those Additional Services.

29.6. The Supplier is not responsible for the provision of training, configuration maintenance or support services to the Customer where the Customer’s Website is not hosted on Supplier Servers.

29.7. The Supplier is not liable for delay in the provision of Website Services caused by circumstances beyond the Supplier’s reasonable control. These circumstances include, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, internet service provider failure s or delays or denial of service attacks.

30. Website Hosting

30.1. The following conditions apply if the Website Services provided to the Customer includes hosting of the Customer’s Website:

(a) the Website will be hosted on Supplier Servers at Data Centres. The availability of the Customer’s Website (including business continuity and data recovery measures) is under the control of the Data Centres. The Data Centres are responsible for physical and cyber security; and
(b)
if the Customer’s Website has been continually hacked or is subject to a distributed denial-of-service (DDoS) attack, then:

  • (i) the Supplier reserves the right to disable the Customer’s Website without any prior notice in order to limit any impact on other customers; and
  • (ii) the Supplier will re-enable the Customer’s Website once the Supplier’s technical team is comfortable there is no further negative impact on the Supplier’s infrastructure.

31. Customer Website – Support & Maintenance

31.1. From time to time the Supplier will need to conduct preventative and remedial maintenance in respect of the Supplier Servers (Scheduled Maintenance). The Supplier will endeavour to carry out all Scheduled Maintenance outside usual Business Hours and to give reasonable notice of any planned downtime for the Customer’s Website. In the event of an emergency, the Supplier may carry out maintenance during usual Business Hours and without first notifying the Customer.

31.2. If the Website Services provided to the Customer include support and maintenance of the Customer’s Website, then the Supplier will perform minor updates to the Customer’s Website and undertake bug fixes at no cost to the Customer.

31.3. If the Customer’s Website is hosted on the Supplier Servers and:

(a) the Customer’s Personnel make adjustments to the Customer’s Website; or
(b)
the Customer allows one or more third parties to make adjustments to the Customer Website (via FTP or WordPress admin rights); and

(c)
if the code underlying the Customer’s Website is damaged due to adjustments which the Customer or any third party makes to the Customer’s Website,

then the Supplier is not liable to provide support or maintenance in respect of the Customer’s Website even if the Website Services provided to the Customer includes support and maintenance of the Customer’s Website. At the Customer’s written request, the Supplier will fix any code so damaged (as an
Additional Service at the Customer’s cost).

31.4. Websites are built in the WordPress content management system (an Open Source technology). The Supplier does not warrant that the Customer’s Website will not be affected by hackers or third-party malicious code. If the Website Services provided to the Customer includes support and maintenance
of the Customer’s Website, the Supplier will remove any malicious code on the Customer’s Website, but the Supplier is not liable for any damages which any hacker or third-party malicious code may cause to the Customer’s business.

31.5. The Supplier reserves the right to disable and remove any third party plugins at any time as the Supplier sees fit. If these plugins are reactivated and the Customer’s site continues to be hacked, then the Supplier reserves the right to suspend the Customer’s Website without notice.

32. Customer Website

32.1. If requested by the Customer in writing to provide functionality which the Customer requires for the Customer’s Website, the Supplier may provide and install third-party plugins on the Customer’s Website.

(a) the Supplier does not guarantee the reliability nor accept responsibility for third party plugins and the consequences they may have on the Customer’s Website.
(b)
the Customer is free to disable these plugins as the Customer sees fit.

32.2. Ownership of the Intellectual Property Rights subsisting in:

(a) the Website developed by the Supplier for the Customer vests, subject to subparagraph (b), in the Customer on payment being made for the Website in full; and
(b) any plugins and themes, provided by the Supplier to the Customer for use in respect of the Customer’s Website, remains at all times with the Supplier or its licensors.

Note: This includes custom plugins or themes built at the Customer’s request and cost which the Customer agrees the Supplier can use as the Supplier sees fit – including provision to its other customers .

32.3. The Customer’s requirements for any Website developed by the Supplier for the Customer together with details of any materials to be supplied by the Customer any other Customer-dependencies therefor, will be recorded in the Agreement Details.

32.4. Any variations to those requirements or delays in the supply of those materials and/or Customer-dependencies may incur additional costs payable by the Customer.

32.5. If the Customer’s Website does not go live by the date or within the time specified in the Agreement Details, the Customer is not entitled to a refund of any money paid to the Supplier or terminate the Agreement.

33. Domain Names

33.1. If the Website Services provided to the Customer includes domain name management, the Supplier will:

(a) pay for renewal of each domain name within 30 days of its renewal date without reference to the Customer; and
(b)
be reimbursed for these fees by the Customer.

33.2. If the Customer does not want the Supplier to renew a domain name that is under the Supplier’s management, the Customer’s must notify the Supplier in writing prior to the domain name renewal date.

34. Customer Content

34.1. The Customer may provide Customer Content to the Supplier for use on the Customer’s Website. The Customer may itself upload Customer Content to the Customer’s Website.

34.2. Except as set out in this clause, the Customer retains all Intellectual Property Rights subsisting in Customer’s Customer Content.

34.3. The Customer grants the Supplier a non-exclusive, irrevocable, perpetual, royalty and fee free, unlimited licence (including the right to sub-license) to adapt, modify, communicate, exploit (in any manner) and use the Customer’s Customer Content in connection with the development, marketing, promotion and provision of the Supplier’s business activities.

34.4. Without limiting any of the above provisions the Customer warrants and represents to the Supplier that:

(a) to the extent that it is relevant, the Customer holds enforceable releases from any person featured in any visual material comprising Customer Content, consenting to the use of their image on the Customer’s Website;
(b)
it holds the consent of the creator of its Customer Content to the taking of any action or the omission of any action that would, but for the consent. Result in a breach of the creator’s Moral Rights;

(c)
the use of its Customer Content on the Customer’s Website will not:

  • (i) breach any Laws; or
  • (ii) to the Customer’s knowledge, infringe any third party’s Intellectual
    Property Rights or other rights;

(d) its Customer Content is accurate and not misleading or deceptive; and
(e)
its Customer Content is free from viruses or any form of harmful or malicious code.

34.5. The Customer acknowledges that:

(a) the Customer is solely responsible for the Customer Content which it uploads to the Customer’s Website;
(b)
the Supplier has no obligation to monitor any content posted or distributed by the Customer;

(c)
the Supplier reserves the right in its sole discretion to delete, edit or refuse to upload to the Customer’s Website any Customer Content; and

(d)
to the extent permitted by applicable law, the Supplier has no liability whatsoever with respect to any Customer Content which the Customer uploads to the Customer Website.

34.6. The Supplier reserves the right to remotely monitor the usage and performance of the Customer’s Website and the Customer consents to such monitoring.