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CryspIQ® Licence Terms

Effective Date: January 2024

These Terms of Use ("Terms") govern your usage of the CryspIQ® "SAAS" (the "Product") which is hosted and provided by Crysp Intelligence Pty Ltd (as the "Service Provider"). This will be a legal contract between you (as the "Client") and us so it is important that you review them carefully before deciding to purchase the CryspIQ product.

1. INTERPRETATION​

In this Agreement, unless the context otherwise requires:

  1. Headings, clause headings and underlining have been inserted for guidance only and shall not be deemed to form any part of the context of this Agreement;
  2. Alternative grammatical forms of defined words or expressions have corresponding meanings;
  3. Words denoting the singular number include the plural and vice versa and words denoting a given gender include all genders;
  4. The expression “person” includes an individual, body corporate, a business or an unincorporated association;
  5. The words “including” or “includes” means “including, but not limited” or “includes, without limitation” respectively;
  6. An agreement includes any undertaking, representation, deed, agreement or legally enforceable arrangement or understanding whether written or not;
  7. A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
  8. A reference to a recital, clause or schedule is to a recital, clause or schedule of or to this Agreement;
  9. A reference to any deed or document is to that deed or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
  10. A reference to “dollars” or “$” is to Australian currency;
  11. This Agreement binds each party’s legal personal representatives, successors and lawful assignees; and
  12. When a party comprises two or more persons the rights and obligations of such persons pursuant to this Agreement inure to the benefit of and bind all of them jointly and each of them severally.

2. DEFINITIONS​

This Agreement includes the following defined terms:

Agreement means this supply agreement.

Business Day means any day that is not a Saturday, Sunday or public holiday in the State of Western Australia.

Certification means certification issued by the Service Provider confirming that the holder of the certification is qualified to implement, deliver and provide support for the Product.

Change in Control means the acquisition by any person, either alone or together with an associate party of:

  1. where the Party is a company, a beneficial interest in more than 50% of the issued shares in the Party; or
  2. where the Party is the trustee of a unit trust, a beneficial interest in more than 50% of the issued units in that trust.

Claims means all claims, disputes, losses, damages, differences, allegations, complaints, demands, notices, suits, actions, proceedings, expenses and liabilities of whatever nature and however arising, whether presently known or unknown, and whether past present or future, including without limitation, claims for interlocutory relief, costs, damages and interest.

Cloud Fee has the meaning given in clause 5.2.

Commencement Date means the date on which this Agreement is executed by the last Party to sign it.

Confidential Information means all ideas, know-how, show-how, trade secrets, concepts, designs, specifications, drawings, methodologies, processes, methodologies, sales, projections, sales figures, financial and business information, formulae, technical information, developments, modifications, improvements and discoveries, all other commercially valuable information, and any other information of any kind and in any form ((including written, photographic, electronic, and any other form in which information may be stored) concerning or in any way connected with the Service Provider, the Indicia or the Product.

Fees includes the Supply Fee and Cloud Fee as specified in item 2 of the Schedule, payable by the Client to the Service Provider in accordance with clause 5.

Insolvency Event means:

  1. a receiver, manager, receiver and manager, trustee, administrator, liquidator or provisional liquidator, controller or similar officer is appointed in respect of a person or any asset of a person who is a Party to this Agreement;
  2. any application (not being an application withdrawn or dismissed within 21 days) is made to a court for an order, or an order is made, or a meeting is convened, or a resolution is passed, for the purpose of appointing a person referred to in the preceding paragraph winding up a corporation, or proposing or implementing a scheme of arrangement;
  3. any event or conduct occurs which would enable a court to grant a petition, or an order is made, for the bankruptcy of an individual or his estate under any law relating to insolvency, sequestration, liquidation or bankruptcy, and any provision of any deed, arrangement or scheme, formal or informal, relating to the administration of any of the assets of any person;
  4. a moratorium of any debts of a person, or an official assignment, or a composition, or an arrangement (formal or informal) with a person's creditors, or any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of that person's creditors or a trustee, is ordered, declared, or agreed to, or is applied for and the application is not withdrawn or dismissed within 21 days;
  5. a person becomes, or admits in writing that it is, is declared to be, or is deemed under any applicable law to be, insolvent or unable to pay its debts; or
  6. any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of a person.

Intellectual Property includes the Product and Intellectual Property Rights.

Intellectual Property Rights means all registered and unregistered intellectual property rights of any kind anywhere in the world, including rights in or in relation to copyright, trade marks, patents, designs, applications, Confidential Information, and any other intellectual property rights related to or in connection with the Product, excluding Moral Rights.

Licence means the licence of the Intellectual Property Rights granted by the Service Provider to the Client pursuant to clause 4.

Moral Rights means the rights set out in Part IX of the Copyright Act 1968 (Cth) as conferred on the author and creator of the Intellectual Property.

Party means a party to this Agreement and Parties has a corresponding meaning.

Product means:

  1. the computer program(s) designated in Item 1 of the Schedule consisting of a set of instructions or statements in machine readable medium only and any enhancement, modification or new release of the said program(s); and
  2. includes any operating manuals and other printed or electronic materials including user manuals and on-line documentation which are designed to assist or supplement the understanding or use of the computer program(s) designated in Item 1 of the Schedule.

Services means the supply of the Product and provision of other goods and services as specified in Item 1 of the Schedule, under the terms and conditions of this Agreement.

Supply Fee means the fee payable by the Client to the Service Provider for supply of the Services.

Taxes means taxes, duties, fees, rates, charges and imposts of all kinds assessed, levied or imposed by the Australian Taxation Office or any other tax office worldwide, and includes capital gains tax, fringe benefits tax, income tax, superannuation guarantee charges, PAYG withholding, GST, any payroll tax assessed, levied or imposed by the Office of State Revenue, interest on all tax payments and additional tax by way of penalty.

Term means the term commencing on the Commencement Date until the date that this Agreement is terminated in accordance with clause 10.

3. COMMENCEMENT AND TERM​

This Agreement shall commence on the Commencement Date and remain in force for the duration of the Term.

4. LICENCE​

4.1 Grant of Licence

Subject to clause 4.2, the terms of this Agreement and in consideration for the payment of the Fees by the Client, the Service Provider grants to the Client a non-exclusive, non-transferrable, non-assignable, revocable licence to use the Intellectual Property via a cloud-based platform in the course of carrying on the Client's business for the Term.

4.2 Product

  1. The Client acknowledges and agrees that the Service Provider owns all Intellectual Property Rights in and to the Product and that nothing in this Agreement constitutes a transfer of the Intellectual Property Rights in or to the Product or any part of it.
  2. The Client licences the Intellectual Property on an as-is basis and acknowledges that the Service Provider makes no warranty that the Product will conform or be fit for any specified purpose, whether known or unknown to the Service Provider.
  3. The supply of the Product under this Agreement is limited to the software and number of users of the Client and the Client agrees that it will not exceed these limits without given prior written notice to the Service Provider, subject to adjustment as provided by clause 4.3(d). The Service Provider reserves the right to audit the Client’s compliance with the terms of this Agreement from time to time.
  4. The Client is aware and accepts that any additional software or increase in concurrent users of the Client may result in higher Fees being charged.
  5. The Client shall remain responsible for use of the Product wherever and whenever.
  6. The Client may not transfer the Product to any third party without the prior written consent of the Service Provider.
  7. By entering into this Agreement, the Client consents to the Service Provider publicly acknowledging that the Client utilises the Product in the operation of its business.

5 FEES​

5.1 Payment of Fees

  1. The Client shall pay the Service Provider the Fees in accordance with this clause.
  2. The Fees are exclusive of any GST that may be charged by the Service Provider to the Client, and if GST is applicable the Service Provider will be entitled to add on GST.
  3. Any further work or services requested by the Client beyond the scope of the specifications contained in the Schedules to this Agreement, including any variations modification, may incur additional charge to the Client and shall be subject to quotation by the Service Provider.
  4. Upon the termination of this Agreement for whatever reason, the Client shall not be entitled to any refund or pro-rata refund of any Fees paid at the time of termination.

5.2 Cloud Fee

  1. The Client acknowledges that the Fees includes the Cloud Fee, which is calculated based on the Service Provider’s genuine estimate of its costs associated with or arising from the Client’s access and/or usage of the Client’s cloud service.
  2. At the end of each month, the Service Provider will compare the Cloud Fee paid for the previous month against the actual costs incurred by it for the cloud service, and any difference shall be accounted for in the following month’s estimate.

5.3 Invoices

  1. The Service Provider will provide the Client with a tax invoice in respect of Fees payable under this clause 5.2.
  2. Payment of any tax invoice rendered by the Service Provider must be made by the Client to the Service Provider without set off, deduction or withholding, and within 14 days after receiving the Service Provider’s invoice or as otherwise stated on an invoice.
  3. If the Client does not make payment of any amount due under this Agreement by the date stated in an invoice or as otherwise provided for in the Agreement, the Service Provider may do any or all of the following:
    1. charge interest on the outstanding amount at the rate of 6% per annum accruing daily;
    2. require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
    3. cease performing or providing the Services (or any part of the Services).

5.4 Disputed Invoices

If the Client disputes the whole or any portion of the amount claimed in an invoice submitted by the Service Provider, the Client must:

  1. pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this Agreement; and
  2. notify the Service Provider in writing 5 days of receipt of the invoice of the reasons for disputing the remainder of the invoice.
  3. If the Client does not give a notice of the kind set out in clause 5.3(b) above, the Client shall be deemed to have accepted the invoice without objection, including the provision of the Services or nature of the Fees relating to it as the case may be.

6. WARRANTIES, INDEMNITIES AND LIMITATION ON LIABILITY​

6.1 The Service Provider hereby warrants that the use of the Intellectual Property according to the terms and conditions of this Agreement will not result in the infringement of proprietary rights of third parties.

6.2 The Client shall promptly advise the Service Provider in writing of any Claims brought against the Client or the Service Provider, or in respect of which the Client or the Service Provider may become liable, arising out of the use of the Product by the Client.

6.3 The Client hereby indemnifies and agrees to keep the Service Provider indemnified against any Claims arising out of the use of the Product by the Client, its servants or agents, where such use is other than in accordance with this Agreement. The defence of any litigation to which this clause applies shall be under the control of the Client, its solicitors and counsel and all legal costs and expenses of any such litigation shall be borne by the Client. The Service Provider, its solicitors and counsel may participate in such litigation at the expense of the Service Provider.

6.4 The Service Provider will, subject to clause 6.5, indemnify and at all times hereafter hold the Client fully and effectively indemnified against any Claims brought arising against the Client by a third party on the ground alleging that the Product infringes upon that third party’s intellectual property. The indemnity in this clause excludes any third party Claims which are frivolous or without merit and shall not apply where the Client uses the Intellectual Property other than in accordance with this Agreement.

6.5 The Service Provider will not indemnify the Client as provided in clause 6.4 unless the Client:

  1. notifies the Service Provider in writing as soon as practicable after it becomes aware of any infringement, suspected infringement or alleged infringement;
  2. at the Service Provider’s request, gives the Service Provider the option to conduct the defence of such a claim at its own expense, including negotiations for settlement or compromise prior to the institution of legal proceedings;
  3. at the Service Provider’s request, provides the Service Provider with reasonable assistance in conducting the defence of such a claim at the Service Provider’s own expense;
  4. at the Service Provider’s request, permits the Service Provider to modify, alter or substitute the Product, at the Service Provider’s own expense, to render it non-infringing provided that the such modification, alternation or substitution does not adversely affect the operational characteristics of the Product; and
  5. at the Service Provider’s request, authorises the Service Provider to procure for the Product the authority to continue the use and possession of the Product at the Service Provider’s own expense.

6.6 Except in the case of death or personal injury caused by the Service Provider’s negligence, the liability of the Service Provider under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Client to the Service Provider under this Agreement.

7. DEFECTS​

If the Client identifies any defect in the Product, the Client must promptly notify the Service Provider in writing.

8. CLIENT’S OBLIGATIONS​

8.1 The Client must take all reasonable steps to:

  1. preserve the integrity, security and value of the Product for the benefit of the Service Provider during and after the Term;
  2. protect the Product from unauthorised access, use or misuse, damage or destruction by any person; and
  3. ensure that any use, supervision, management and control of the Product is authorised and in accordance with this Agreement.

8.2 The Client must not, and must not attempt to, do any of the following things whether alone or in association with any third party, without the prior written consent of the Service Provider (such consent being at the Service Provider’s sole discretion):

  1. copy or reproduce the whole or any part of the Product;
  2. reverse engineer the whole or any part of the Product;
  3. modify the whole or any part of the Product;
  4. sublicense the whole or any part of the Product;
  5. allow the whole or any part of the Product to be accessed, used or exploited by any third parties; or
  6. disclose any Confidential Information to any third party.

8.3 The Client is responsible for its use of any par of the Services, including by its officers, employees and agents.

8.4 The Client must not, and shall ensure that no other person accessing or receiving the Services or any Product, uses any part of the Services:

  1. to infringe upon any law or any person’s rights (including Intellectual Property Rights);
  2. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing, inaccurate, misleading or fraudulent;
  3. to introduce to the Services any malware, virus, trojan horse, worms, or any other program that may result in any technical glitch, malfunction, failure, delay, default or security breach;
  4. to undermine the security or integrity of the computing systems or networks on which the Services are hosted;
  5. to damage, interfere with or interrupt the supply of the Services; or
  6. for any improper purpose.

8.5 The Client must indemnify the Service Provider against, and must pay the Service Provider on demand, the amount of all losses, liabilities, costs and expenses arising out of its failure to comply with this clause.

8.6 The obligations accepted by the Client under this clause survive termination or expiry of this Agreement.

9. PROCEEDINGS FOR INFRINGEMENT OF INTELLECTUAL PROPERTY​

9.1 In the event the Client learns of any infringement or threatened infringement in respect of the Intellectual Property, or any common law passing-off by reason of imitation or otherwise:

  1. the Client shall immediately notify the Service Provider in writing giving particulars of the infringement or threatened infringement;
  2. the Service Provider may institute and prosecute legal action in respect of any perceived or actual infringement of the Intellectual Property and the Client shall cooperate with the Service Provider for the purposes of such proceedings; and
  3. the Service Provider may, in its sole discretion, suspend provision of the Services on such terms as it sees fit in the event of any pending or current legal proceedings concerning the Intellectual Property.

9.2 The proceeds of any judgment or settlement received by the Service Provider as a result of any action brought by it under clause 8.1(b) shall be applied:

  1. first, to reimburse the Service Provider for any expenses (including legal costs on a solicitor-client basis) incurred by it in prosecuting the action and to pay the Service Provider’s costs and expenses;
  2. second, to reimburse the Client for any expenses (including legal costs on a solicitor-client basis to the extent the costs incurred are, in the Service Provider’s view, reasonable) incurred by it in assisting the Service Provider in prosecuting the action; and
  3. third, with the remainder of the proceeds belonging to the Service Provider.

9.3 If the Service Provider determines not to prosecute an action against any infringement of the Intellectual Property, then the Client shall have the right, at the Client’s expense, to institute and prosecute such an action in the Client’s name or the Service Provider’s name with the Service Provider’s prior written consent.

9.4 The proceeds of any judgment or settlement received by the Client as a result of any action brought by the Client under clause 8.4 shall be applied:

  1. first, to reimburse the Service Provider for any expenses (including legal costs on a solicitor-client basis) incurred by it in assisting the Client in prosecuting the action;
  2. second, to reimburse the Client for any expenses (including legal costs on a solicitor-client basis) incurred by it in assisting the Service Provider in prosecuting the action; and
  3. third, the remainder of the proceeds shall be shared by the Client and the Service Provider equally.

9.5 The Client and the Service Provider shall each do all things reasonably necessary to aid and cooperate in the prosecution of any such actions brought by the other under this clause.

10. TERMINATION​

10.1 The Service Provider may, by notice in writing to the Client, terminate this Agreement with immediate effect in any of the following circumstances:

  1. it ceases to own the Intellectual Property;
  2. the Client fails to pay any Fees (or part thereof) when due;
  3. the Client commits any breach of any provision of this Agreement; or
  4. any Insolvency Event occurs in relation to the Client.

10.2 This Agreement may be terminated by the Client by giving 14 days written notice to the Service Provider, if the Service Provider commits a material breach of this Agreement and fails to remedy such breach within 30 days of receipt of written notice requiring it to do so.

10.3 The Service Provider or the Client may, in their absolute discretion and without reason, terminate this Agreement by giving the other party 30 days’ notice in writing.

10.4 The termination of this Agreement for whatever reason shall:

  1. not affect the accrued rights of the Parties; and
  2. be without prejudice to the rights of the Party terminating to seek and obtain damages for any breach of this Agreement by the other Party.

10.5 On the termination of this Agreement for whatever reason:

  1. the Client shall immediately cease using the Intellectual Property;
  2. the Client shall take all necessary steps to inform any third parties that it no longer has any rights to use the Intellectual Property;
  3. the Client must promptly deliver up to the Service Provider all documents and records howsoever stored or embodied comprising or in any way concerning the Intellectual Property;
  4. all Fees previously paid by the Client to the Service Provider shall remain the property of the Service Provider and the Client shall make no Claim in respect of them; and
  5. the Client shall further pay to the Service Provider any Fees accrued but unpaid as at the date of the termination or expiration.

11. DISPUTE RESOLUTION​

11.1 If a dispute arises in connection with this Agreement, a Party to the dispute may give to the other Party or Parties to the dispute notice specifying the dispute and requiring its resolution under this clause (Notice of Dispute).

11.2 If the dispute is not resolved within 14 days after the Notice of Dispute is given to the other Party or Parties, the Parties must refer the matter to mediation. The mediation must be conducted in Perth, Western Australia. The Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules (at the date of this Agreement) as amended by this clause apply to the mediation, except where they conflict with this clause (in which case this clause shall prevail).

11.3 If the Parties cannot agree upon the mediator and the mediator's remuneration within 5 Business Days after referral to mediation, the Resolution Institute (Principal Appointer) or the Principal Appointer’s nominee, acting on the request of any Party to the dispute, shall appoint a mediator and determine the rate.

11.4 The mediator's remuneration shall be borne by the Parties to the dispute in equal shares. Each Party must pay its own costs of the mediation.

11.5 If the dispute is not resolved within 10 Business Days after the appointment of the mediator, a Party may commence court proceedings in relation to the dispute.

11.6 Nothing in this clause prevents a Party from, at any time, commencing court proceedings in relation to any dispute or claim arising under or in connection with this Agreement where that Party seeks urgent interlocutory relief or solely payment of liquidated damages.

11.7 This clause applies even where the Agreement is otherwise void or voidable.

12. NOTICES​

12.1 Any notices and statements to be given to the Service Provider and all items that need to be submitted to the Service Provider under this Agreement shall be deemed to be duly given or submitted as the case may be if given or submitted to the following addresses either by regular post or by email:

Address:

Email:

or such other person or address as the Service Provider may from time to time nominate in writing.

12.2 Any notices and statements to be given to the Client and all items that need to be submitted to the Client under this Agreement shall be deemed to be duly given or submitted as the case may be if given or submitted to the following addresses either by regular post or by email:

Address:

Email:

or such other person or address as the Client may from time to time nominate in writing.

12.3 A notice, demand, consent or authority given or made to any person under this Agreement will be deemed to be given or made:

  1. if by post, on the second Business Day following the date of posting; or
  2. if by email, upon successful transmission.

12.4 A notice, demand, consent or authority given or made to any person under this Agreement may be signed:

  1. by a director, secretary or authorised officer of the Party giving the notice; or
  2. by a solicitor or other agent of the Party giving the notice.

13. ASSIGNMENT AND SUCCESSION​

13.1 The Client must not assign, sublease, transfer or otherwise dispose of any of its rights, title or interest under this Agreement without first obtaining the written consent of the Service Provider, which consent may be granted or withheld in the Service Provider’s sole and absolute discretion.

13.2 The Service Provider may at its discretion assign all or any of its rights or obligations under this Agreement.

13.3 For the purposes of this clause, a Change in Control shall be a deemed assignment.

14. GENERAL​

14.1 Relationship of parties

Nothing stated in this Agreement shall be construed as constituting the Parties as partners, or as creating the relationship of employer and employee, master and servant or principal and agent between the Parties. The Client shall have no authority express or implied to act as the agent of the Service Provider for any purpose.

14.2 No Waiver

No failure, delay, relaxation or indulgence on the part of any Party in exercising any power or right conferred upon such Party in terms of this Agreement shall operate as a waiver of such power or right nor shall any single or partial exercise of any such power or right nor any single failure to do so, preclude any other or future exercise thereof, or the exercise of any other power or right under this Agreement.

14.3 Entire Agreement

This Agreement constitutes the entire Agreement and understanding between the Parties hereto and none of the provisions of this Agreement shall be amended, modified or supplemented except by a written instrument executed by the Parties. Without limiting the generality of this clause, the Parties acknowledge and declare that in entering into this Agreement they have not relied on any promise, representation, warranty or undertaking given or reported to have been given by or on behalf of the other Party and that there are no representations, promises, Agreements, warranties, covenants and undertakings other than those expressly contained herein. Further, no oral representations, promise, warranty or undertaking relating to the renewal of this Agreement shall be of any force or effect unless in writing and signed by those Parties.

14.4 Severability

If any provision of this Agreement is held by a court to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation the validity and enforceability of the remaining provisions shall not be thereby affected.

14.5 Trustees

If any party (Trustee) has entered into this Agreement in the capacity of as trustee of any trust (Trust) under any trust deed, deed of settlement or other instrument (Trust Deed), and whether or not the other party has notice of the Trust, then the Trustee:

  1. enters into this Agreement as trustee of the Trust as well as personally; and
  2. represents and warrants that:
    1. the Trustee has power under the Trust Deed and, in the case of a corporation, under its constitution, to enter into and execute this Agreement and to perform the obligations imposed under this Agreement as such trustee
    2. all necessary resolutions have been passed as required by the Trust Deed and, in the case of a corporation, by its constitution, in order to make this Agreement fully binding on the Trustee;
  3. the execution of this Agreement is for the benefit of the Trust;
  4. the Trustee is not now in default under the Trust Deed;

14.6 here is not now, and the Trustee will not do anything by virtue of which there will be in the future, any restriction or limitation on the right of the Trustee to be indemnified out of the assets of the Trust; and

14.7 there is no material fact or circumstance relating to the assets, matters or affairs of the Trust that might, if disclosed, be expected to affect the decision of the other party, acting reasonably, to enter into this Agreement.

14.8 Amendment

This Agreement may only be amended, supplemented, discharged or abandoned in writing and signed by the Parties.

14.9 Further assurances

Each Party to this Agreement shall do, sign and execute all deeds, schedules, acts, documents and things as may reasonably be required by the other Parties so as to carry out and give effect to the terms and intentions of this Agreement effectively and to perfect, protect and preserve the rights of the other Parties hereunder whether before or after completion.

14.10 Counterparts and electronic signatures

  1. This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one and the same instrument. This Agreement is not binding on any Party unless one or more counterparts have been duly executed by, or on behalf of, each person named as a Party to this Agreement and those counterparts have been exchanged. A copy of a counterpart sent by email as a PDF:
    1. must be treated as an original counterpart;
    2. is sufficient evidence of the execution of the original; and
    3. may be produced in evidence for all purposes in place of the original.
  2. The counterparts of this Agreement may be executed and delivered by electronic signatures or use of an electronic signing system, by either of the Parties and the receiving Party may rely on the receipt of such counterpart so executed and delivered electronically as valid, enforceable and admissible.

14.11 Governing Law

This Agreement is governed by and must be construed in accordance with the laws of Western Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia and all courts which have jurisdiction to hear appeals from those courts, and waives any right to object to proceedings being brought in those courts for any reason.