privacy@ymlinnovation.com.au
privacy@ymlinnovation.com.au
CONTACT FOR INFO
+ 21 356 552 8489
trading as YML Innovation
1.1Customer is entering into this agreement with YML Innovation to license Modules for the Licence Term in accordance with the Module Details, Support Services Schedule and these Terms and Conditions and otherwise, as may be agreed between the parties in writing from time to time.
1.2Customer must order the Base Module package consisting of the following four Modules:
Additional modules may be ordered by the Customer as and when they become available.
1.3The Customer may order additional Modules to be added to the Base Module package on the following basis:
1.4YML Innovation shall supply the Modules and Support Services in accordance with this agreement, including any delivery dates, Support Service Details, Service Levels specified in the Support Services Schedule.
2.1This agreement commences on the Commencement Date and continues for the Term (as set out in the Module Schedule).
2.2After the first 12 months, this Agreement shall automatically renew on a three-monthly basis unless either party provides the other with at least three (3) months' written notice of its intention to terminate this Agreement.
3.1If Customer raises a request for Support Services, YML Innovation shall promptly open a support ticket and with all due care and skill, and to a high professional standard:
in accordance with the Support Services Schedule.
3.2Customer shall ensure reasonable availability of Customer representative(s) to communicate with YML Innovation while resolving a Support Services request during Business Hours.
3.3YML Innovation shall only be responsible for operation and availability of IT systems it controls, and it shall not be responsible for any system outages resulting from third party systems outside of its control. Third party system failures shall not be considered as a Software defect under this Agreement.
4.1The Licence Fees for the Modules are calculated in accordance with the Module Details, and are subject to any agreed minimum and maximum monthly Licence Fees stated.
4.2YML Innovation shall provide not less than 4 months' written notice prior for updated Licence Fees to apply in a renewed Licence Term.
4.3Licence Fees are charged on a quarterly basis and are payable quarterly in advance following issue of a valid tax invoice by YML Innovation.
4.4YML Innovation reserves the right to suspend the Customer's use of the Product and/or reduce functionality of the Modules within 14 days of notice in the event of failure by the Customer to pay the Licence Fees. In the case of additional Modules, if the Licence Fee is not paid within 14 days of it being due after YML has issued a valid tax invoice for such Licence Fee, YML Innovation will be permitted to lock the additional Module until such time as the Licence Fee has been paid by the Customer, at which time the Customer should open a service ticket to request release of the additional Module.
4.5Unless otherwise agreed, all prices are stated in Australian (AU) dollars.
5.1Any reference in this clause 5 to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
5.2Unless otherwise expressly stated, all amounts referred to in this agreement, including amounts used to determine a payment to be made by one party to the other (other than an amount referred to in clause 5.5), are exclusive of GST (GST Exclusive Consideration).
5.3To the extent that GST is payable in respect of any supply made by a party (Supplier) under or in connection with this agreement, the GST Exclusive Consideration to be provided under this agreement for that supply is increased by an amount equal to the GST payable by the Supplier (excluding any Excess GST).
5.4The recipient must pay the additional amount payable under clause 5.3 to the Supplier at the same time and in the same manner as the GST Exclusive Consideration is otherwise required to be provided.
5.5Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with this agreement, the Supplier must determine the net GST in relation to the supply (taking into account any adjustment). If the net GST differs from the amount previously paid under clause 5.4, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
6.1YML Innovation agrees to:
7.1Customer shall ensure that the following minimum standards are maintained in relation to all computerised systems and software used to connect to YML Innovation computerised systems:
in accordance with the Support Services Schedule.
7.2Customer shall notify YML Innovation as soon as practicable and in any event within one Business Day if it becomes aware of any breach or possible breach or compromise of Customer's computerised systems, where such breach or compromise has the potential to impact on YML Innovation's computerised systems.
8.1Either party may terminate this agreement on
8.2In the event of early termination, other than due to material breach by the Customer, the Customer will be entitled to a pro rata refund of any License Fees paid to YML Innovation.
9.1To the extent that either party collects, handles, holds stores or deals with Personal Information of any nature in connection with this Agreement, such party shall:
9.2Each party shall promptly notify the other party if it:
(each a "Data Issue") and shall act reasonably to collaborate and promptly resolve the Data Issue in a manner consistent with the Privacy Laws.
10.1Each party ("Receiving Party") may only use Confidential Information provided to it directly or indirectly by the other party ("Disclosing Party") for the purpose of complying with or exercising its rights and obligations under this agreement.
10.2Each Receiving Party shall treat as confidential all Confidential Information, and unless required by government, law or regulation, shall not disclose or publish any such Confidential Information to a third party without the prior written permission of the Disclosing Party. Where disclosure is required by government, law or regulation, the Receiving Party must notify the Disclosing Party prior to disclosure and give the Disclosing Party the opportunity to limit or prevent the disclosure of its Confidential Information.
10.3The above obligations do not apply if the Receiving Party can demonstrate to the Disclosing Party's reasonable satisfaction that the Confidential Information:
10.4Customer acknowledges that it may only disclose YML Innovation's Confidential Information relating to the Modules to those of its officers, employees or consultants, affiliates or service providers who require access to the Confidential Information for a purpose directly related to use of the Modules and it shall take all reasonable steps to ensure and enforce compliance of all such persons with the confidentiality clauses in these Terms and Conditions, including by requiring such persons to sign non-disclosure undertakings.
10.5Customer agrees and acknowledges that it is not permitted to:
as these constitute YML Innovation's Intellectual Property.
10.6Customer is aware that a breach of the confidentiality obligations in these Terms and Conditions may cause YML Innovation serious and irreparable damage, and that financial compensation may not be a sufficient remedy for such damage. Therefore, Customer agrees, that if such a breach occurs, YML Innovation shall be entitled, without prejudice, to immediately suspend or terminate the License and take all legal means necessary, and seek all and any injunctive relief to restrain any continuing or further breach of these confidentiality obligations.
11.1YML Innovation shall take out and maintain at its cost for the duration of the agreement, professional indemnity insurance for the value of $20,000,000 for any one claim and in the aggregate and workers compensation insurance as required by law to cover risk arising from its supply of the Modules and Support Services. YML Innovation must provide the Customer with certificates of currencies if requested.
12.1All Intellectual Property rights in Modules shall remain the property of YML Innovation. Customer shall not acquire any rights, title or license in the Intellectual Property used by, disclosed, or made available by YML Innovation to the Customer for the purpose of this Agreement, other than the right to use and have access to the Modules and corresponding Support Services in accordance with this Agreement. The Customer's Intellectual Property rights are limited to the reports generated by the Modules for the Customer.
12.2Intellectual Property rights in any improvements or developments to Modules shall be the exclusive property of YML Innovation, irrespective of any Customer input to such improvements or developments or use of information or data obtained from the Customer or Customer sites or systems, whether through use of the Modules or otherwise, and where required YML Innovation shall permit the Customer to use and have access to such improvements or developments to Modules and corresponding Support Services in accordance with this Agreement.
12.3This Agreement does not transfer or assign any Intellectual Property rights owned by the Customer or any party acting for and on behalf of the Customer with respect to the operation of the Hotel.
12.4YML Innovation represents that the Modules has been constructed and written in conjunction with the Customer's process and policies and warrants that it cannot sell the said Modules to third parties. It is agreed between the parties, that the foregoing does not prevent YML Innovation from selling the Modules to third parties, provided that it is not based on the Customer's Intellectual Property and is designed in accordance with the requirements of that third party.
12.5YML Innovation represents and warrants that to the best of its knowledge, all Intellectual Property used by it in the course of providing the License does not and shall not infringe any third-party Intellectual Property rights. YML Innovation indemnifies the Customer against all actions, claims, demands and proceeding against the Customer and all losses, damages, costs, expenses and other liabilities suffered or incurred by the Customer, arising from any failure by YML Innovation to comply with its obligations in this clause 12.5.
12.6Customer shall not reverse engineer, decompile or disassemble any Module, software or system belonging to YML Innovation and used by the Customer.
13.1Notwithstanding anything else in this agreement or otherwise, neither party and each of their officers, directors, employees and agents will be liable to the other party with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for:
13.2Although YML Innovation is responsible for fixing system errors that are a result of bugs in the Software code, YML Innovation is not responsible for data errors.
13.3The Customer acknowledges that the limitation of liability in clause 13.1 does not apply in the event the Customer breaches its confidentiality obligations to YML Innovation by disclosing YML Innovation's Confidential Information to any third party other than strictly in accordance with this Agreement, or if the Customer infringes YML Innovation's Intellectual Property Rights.
13.4YML Innovation acknowledges that the limitation on liability in clause 13.1 does not apply in the event that YML Innovation breaches its confidentiality obligations to the Customer by disclosing the Customer's Confidential Information to any third party other than strictly in accordance with this agreement, or if YML Innovation breaches its privacy obligations under clause 9 of this Agreement arising in loss or damage being caused to the Customer.
14.1If a dispute arises out of or related to this agreement neither party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has complied with this clause 14.
14.2A party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give notice to the other party specifying the nature of the dispute. On receipt of that notice by the other party, each party must endeavour in good faith to resolve the dispute expeditiously and in any event within 10 Business Days, failing which either party may bring such proceedings as it sees fit.
15.1Any notice, approval, consent or other communication by a party under this agreement (Notice) must be in writing and delivered by post or email to a party at the address or email of that party provided in the Project Details or as otherwise specified by a party by Notice.
15.2A Notice is deemed to be given and received:
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is regarded as received at 9.00 am on the following Business Day.
16.1Neither party will be liable for a failure or delay in performing its obligations under this agreement to the extent that such failure or delay is directly attributable to a Force Majeure Event and could not have been prevented by reasonable precautions or circumvented or minimised by the non-performing party.
16.2Each party must:
16.3Where a Force Majeure Event results in the delay or non-performance of either party's obligations for more than 20 consecutive Business Days, or for an aggregate of 40 Business Days in any 12-month period, whichever party is not relying on the Force Majeure Event may terminate this agreement on 15 Business Days' notice by written notice to the other party.
17.1This agreement is governed by the law in force in New South Wales, Australia.
17.2Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
18.1 Entire agreement
(a) This agreement states all the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
(b) For the avoidance of doubt, no terms or conditions of Customer, including any terms or conditions printed on or referred to in any purchase order or other documentation will be binding on YML Innovation or have any legal effect unless expressly agreed in writing by YML Innovation.
18.2 Waivers
Waiver of any right, power, authority, discretion or remedy arising from any breach of this agreement must be in writing and signed by the party granting the waiver.
18.3 Invalidity and enforceability
If any provision of this agreement is invalid under the law of any jurisdiction the provision is enforceable in that jurisdiction to the extent that it is not invalid, whether it is in severable terms or not. This does not apply where enforcing the provision would materially affect the nature or effect of the parties' obligations under this agreement.
18.4 Variation
A variation of any term of this agreement must be in writing and signed by the parties.
18.5 Assignment
This agreement shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assignees. Neither party shall be entitled to assign any of its rights or duties under this agreement without the prior written consent of the other which consent shall not be unreasonably withheld, save that either party may assign any of its rights or duties to any of its affiliates, or to any other party in connection with the sale or transfer of all or a substantial part of its business, or in connection with a merger or other consolidation with another entity. For the avoidance of doubt, sale of the Customer does not release the Customer from the obligations under this agreement.
18.6 Relationship of the parties
Nothing in this agreement imposes any fiduciary duties on a party in relation to any other party.
18.7 Counterparts
This agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. A party may execute this agreement by signing any counterpart.
19.1 Definitions — In this agreement:
means a day that is not a Saturday, Sunday nor a public holiday in New South Wales, Australia.
means the hours between 8:00am and 6:00pm AEST on a Business Day.
shall include all data and information relating to the Modules in whatever form or media, whether in writing, oral, graphic, electronic, electromagnetic or otherwise, and any derivatives thereof, including, but without limitation, technical descriptions, know-how, discoveries, processes, developments, designs, computer programs and formulae, proprietary software, product concepts and plans, financial and business information, plans and methods, product cost and pricing information, market information, together with all information disclosed by (or obtained from) one party to (or by) the other party that:
(a) is by its nature confidential;
(b) is designated by a party as confidential; or
(c) a party knows or ought to know is confidential,
but does not include information which is or becomes public knowledge other than by breach of this Agreement or any other confidentiality obligation.
means any circumstance beyond the reasonable control of either Party which results in a Party being unable to observe or perform on time an obligation under this Agreement.
means the goods and services tax under the GST Act.
means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
means circumstances in which a party is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for:
(d) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other party;
(e) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or
(f) seeks protection or is granted protection from its creditors, under any applicable legislation.
means all intellectual and industrial property rights throughout the world, whether registered or unregistered, including trade marks, designs, patents, inventions, circuit layouts, copyright and analogous rights, confidential information, know-how and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
(a) the Privacy Act 1988 (Cth);
(b) the Australian Privacy Principles contained in Schedule 1 of the Privacy Act;
(c) any approved privacy codes that apply to any of the parties; and
(d) all other applicable laws that require a person to observe privacy or confidentiality obligations in respect of Personal Information,
in each case as amended from time to time;
means the term for the Modules specified in the Module Details Schedule.
means the Privacy Act 1988 (Cth) (as amended from time to time).
has the meaning given to it in section 6 of the Privacy Act.
means the licence fees for the Modules payable by Customer to YML Innovation, calculated as specified in the Module Details Schedule, or updated in accordance with clause 4.2.
means the agreed standards of service for YML Innovation to provide Support Services to Customer as set out in the Support Services Details Schedule.
means the software coding used by YML Innovation to develop, operate or support the Modules.
means the support services to be supplied to Customer by YML Innovation in accordance with this agreement.
means these terms and conditions.
19.2 Interpretation — In this agreement:
(a) Headings are for convenience only and do not affect interpretation.
(b) The singular includes the plural and the plural includes the singular.
(c) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning.
(d) A reference to this agreement includes the individual supplies agreed under each Order.
(e) A reference to a clause, party, schedule or annexure is a reference to a clause of, and a party, schedule, annexure of this agreement.
(f) A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.
(g) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.
(h) A reference to a document includes all amendments or supplements to or replacements of that document.
(i) A reference to conduct includes any omission and any statement or undertaking, whether or not in writing.
(j) "Including" and similar expressions are not words of limitation.
(k) Where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
(l) A person includes a company, corporation or other body corporate, association, partnership, joint venture or public, statutory or governmental body, commission, council, tribunal or agency.
(m) A reference to dollars is to Australian (AU) Dollars.