GETSCOPE Solutions B.V.
End User License Agreement
DEFINITIONS AND INTERPRETATION
In this agreement, including the recitals the following expressions shall have the following meanings unless inconsistent with the context: “Additional Charge” means a charge in accordance with the Supplier’s standard rates in effect from time to time;
“Application” means the multi-point integration platform as a service software which is known as “GETSCOPE”;
“Commencement Date” means the date on which the Supplier provides the Customer with access to the Application;
“Confidential Information” means, in the case of a Customer, Customer Data and in the case of the Supplier, includes:
(a)information relating to the Application; or
(b)information relating to the personnel, policies, business, systems and data of the Supplier; and
(c)information relating to the terms on which the Services are to be provided to the Customer pursuant to this agreement;
“Charges” means the Charges for the Services as advised by the Supplier to the Customer in writing, from time to time;
“Customer” means the person who registers to use the Website or the Application, or both, and where the context permits, includes any entity on whose behalf that person registers to use the Services, and any person or organization that uses the Services with the authorization of that person or entity
“Customer Access Facilities” means telecommunications, networks, systems and any other facilities used or required by or on behalf of the Customer for accessing and making use of any Services other than the facilities actually provided by the Supplier from time to time under this agreement;
“Customer Data” means data to which the Supplier is provided access by the Customer for the purpose of the Services;
(a) the same as in the GST Law;
(b) any other goods and services tax, or any tax applying to this agreement in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
“GST Law” means the same as ‘GST law’ inA New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Force Majeure”means a circumstance beyond the reasonable control of the Supplier which results in the Supplier being unable to observe or perform on time an obligation under this agreement. Such circumstances shall include but shall not be limited to:
(a) any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities; and
(b) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes;
“Initial Term” means a term equivalent to the period of time nominated by the Customer, which commences on the Commencement Date; “Integration Solution” means the integration software solution developed by the Spoke Developer which allows the Spoke Developer to integrate or
connect its software platform to the Application for the benefit of the Customer;
“LEADR” means the Australasian dispute resolution body, Lawyers Engaged in Alternative Dispute Resolution;
“Management Services” means any of the services offered for sale or for free on the Website and include generally available updates and support services so far as specified for each Service;
“Services”means the services which the Supplier agrees to provide under this agreement, namely access to the Application, any Management Services and any other services specified in this agreement;
“Spoke Developer” means the software platform vendor who has integrated the features of the Application to their platform and have sold or promoted it to the Customer;
or at such other location as notified by the Supplier from time to time; “GETSCOPE Solutions B.V. Website Terms and Conditions” means the terms and conditions of the Website, accessible
at https://www.getscope.com/terms-conditions/ or at such other location as notified by the Supplier from time to time;
“Website” means the website located https://www.getscope.com or any other website located at a URL containing the trade mark “GETSCOPE Solutions B.V.”
In this agreement unless the context otherwise indicates:
(1)references to this deed include references to this agreement; (2)references to any party to this deed shall include the executors administrators successors and permitted assigns of that party; (3)references to a clause or schedule or other annexure shall be construed as references to a clause of or schedule or annexure to this deed and references to this deed shall include its schedules and any annexures; (4)references to (or to any specified provision of) this deed or another deed or document shall be construed as references to (that provision of) this deed or that other deed or document as amended or substituted with the deed of the relevant parties and in force at any relevant time;
(5)references to any statute, ordinance or other law shall include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
(6)words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;
(7)where any word or phrase is given a defined meaning in this deed, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;
(8)headings included in this deed are for convenience only and shall be disregarded in the construction of this deed.
(1)The Initial Term shall commence on the Commencement Date and continue for the duration of the Initial Term.
(2)After the Initial Term, this agreement shall automatically renew for a further term equivalent to the duration of the Initial Term (each a “Renewal Term”) until either party provides the other with written notification of non-renewal. Such notification must be provided at least fifteen (15) days prior to the expiry of the Initial Term or the Renewal Term, as the case may be.
(3)Renewal of this agreement pursuant to clause 2(2) is subject to the consent of the Supplier. The Customer agrees that the Supplier may require an adjustment of the Charges as a condition of providing its consent to renewal.
Provision of access and management services
(1)Subject to this agreement, the Supplier will provide the Customer with access to the Application.
(2)Subject to this agreement, the Supplier will also provide the Customer with any Management Services.
(3)The Customer agrees that it may only acquire and make use of the Services for the sole purpose of meeting the internal business needs of its business
(4)Other than for the Supplier’s obligation to give the Customer access to the Application as part of the Services, if any consents (which may include, without limitation, consents for the Supplier to access use, store and disclose the Customer Data) are required for the Supplier to provide the Services, the Customer must procure those consents for the Supplier. The obligation of the Supplier to provide the Services are conditional on those consents having been procured. The Customer shall comply with the reasonable requests of the Supplier for confirmation of this.
(5)The Supplier may configure its system and determine the nature and manner of its internal technical support in its discretion. The Customer agrees to comply with such access and use procedures (including as to communications and security) as the Supplier notifies the Customer from time to time.
(6)Other than as expressly permitted by this agreement, the Customer shall not do or permit anything to be done in respect of the Application or the Services. Without limiting the preceding sentence, the Customer shall not:
(a)remove or modify any Application markings or any notice of the Supplier’s rights;
(b)make programs or materials resulting from the Services available to any third party for use in the third party’s business without the prior written consent of the Supplier and subject to any requirements of the Supplier; (c)commercially exploit the Services or the Application (including by making it available to any third party) without the prior written consent of the Supplier and subject to any requirements of the Supplier; and (d)distribute or transmit any part of the Services by any means without the prior written consent of the Supplier and subject to any requirements of the Supplier.
(7)The Customer shall use reasonable efforts to prevent unauthorised third parties from accessing the Services.
(8)The Customer agrees not to make or permit any use of the Services in a way which is unacceptable. Use is unacceptable if:
(a)it involves anything which is false, defamatory, harassing or obscene; (b)it involves unsolicited electronic messages;
(c)it would involve the contravention of any person’s rights (including intellectual property rights);
(d)it may offend any laws;
(e)it may otherwise be regarded by the Supplier, on reasonable grounds, to be unacceptable (the Supplier may from time to time notify the Customer of the circumstances which the Supplier regards as unacceptable);
(f)it involves any fraudulent activity;
(g)if it involves the sale or promotion of any illegal business activities or prohibited products or services.
(9)The Customer agrees that the Supplier may immediately suspend all or any part of the Services, and remove or disable access to anything that contravenes those restrictions or is otherwise in breach of this agreement.
Data and access
(1)The Supplier agrees, on the terms of clause 12 (Confidentiality) that the Customer Data is the Customer’s Confidential Information.
(2)The Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all the Customer Data. The Customer also agrees that there are limitations to the Application’s and Services’ ability to assist in the Customer’s business. The Customer agrees that the Application and the Services do not detect faulty or aberrant input data, do not take into account all of the matters that should be considered in decision making regarding matters of relevance to the Customer’s business and should not be used as a substitute for the Customer’s independent and appropriately qualified decisions regarding matters of relevance to the Customer’s business. The Customer warrants that it will not make or permit any access to or use of the Application or Services unless it has in place appropriate strategies, in addition to (and not reliant on) its use of the Application and Services to manage all risks attendance on its business.
(3)The Customer shall be responsible for providing its own Customer Access Facilities.
(4)The Customer warrants and shall ensure that all Customer Access Facilities meet the security standards required by the Supplier from time to time and are and will remain free from any circumstances (including viruses) which may adversely affect the Supplier, the Application or the Services and are otherwise reasonably appropriate for use in conjunction with the Services.
(5)Subject to clause 12 (Confidentiality), the Supplier owns all rights, including intellectual property rights, in anything developed or delivered under this agreement.
(6)Third party facilities, including software programs, may be necessary or appropriate for access to or use with the Application. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence/services agreement and not by this agreement.
(3)The Supplier may provide the Services from any locations, and/or through the use of contractors, worldwide.
(4)Without limiting clauses 3(4) and 7(1), the Customer agrees to provide any information, and to obtain any consents, relevant to its use of the Services and Application, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in the Customer Data.
(1)Where the Customer has acquired the Application directly from the Supplier, this Section 6 shall apply.
(2)The Customer shall pay the Supplier such Additional Charges as the Supplier invoices from time to time for the supply of goods or services not expressly required by this agreement or (without limiting the Supplier’s remedies at law) which were either required by the Customer or incurred by the Supplier as a result of carrying out any works which were reasonably appropriate in connection with the Customer’s non-performance of this agreement.
(3)The Customer shall make payments to the Supplier in accordance with the terms of the Supplier’s invoice without any set-off or reduction.
(4)If the Customer disputes the whole or any portion of an invoice submitted by the Supplier, the Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify the Supplier in writing (within seven (7) days of receipt of invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this agreement.
(5)The Customer shall pay the Supplier interest on any amount due and not paid by the Customer within the time required by this agreement at the rate of interest notified by the Supplier to the Customer in writing. (6)The Customer must pay the charges and any other amount payable under or in connection with this agreement (which are inclusive of GST, where applicable), either within seven (7) days after the Customer is issued with a tax invoice or within seven (7) days after the Supplier’s request, whichever is the later.
Compliance with law
(1)The Supplier is not liable to the Customer under this agreement or otherwise if and to the extent the Customer’s access to or use of any Services is contrary to any obligations, including those owed under contract or any laws.
(2)The Supplier may (but is not bound to) make the Customer Data and any other information (in any form) relevant to the Customer’s relationship with the Supplier under this agreement available to any person who provides reasonable evidence to the Supplier of their right to this, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom the Customer Data pertains.
(3)The Customer shall indemnify the Supplier against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of:
(a)the Supplier’s collection, use, disclosure, storage or other involvement with the Customer Data and any other information (in any form) relevant to the Customer’s relationship with the Supplier under this agreement; and (b)acting in accordance with the preceding subclause.
Conditions of Licence
(1)The Customer warrants to the Supplier that all material submitted by the Customer to the Supplier, affiliate or reseller:
(a)complies with the terms of this agreement;
(b)does not contain data that may be reasonably regarded by the Supplier as inappropriate, inaccurate, defamatory or otherwise offensive;
(c)does not infringe any law, regulation, standard or relevant industry code; and
(d)does not infringe any intellectual property rights of any person.
(1)Without limiting the generality of any other clause in this agreement, the Supplier may terminate this agreement or suspend performance of its obligations under this agreement (for such period as the Supplier specified) immediately by notice in writing if:
(a)the Customer is in breach of any term of this agreement and such breach is not remedied within seven (7) days of it notifying the Supplier; (b)the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; (c)the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(d)the Customer, being a natural person, dies; or
(e)the Customer ceases or threatens to cease conducting its business in the normal manner.
(2)If any of the circumstances referred to in (a)-(e) of the preceding subclause occur, the Customer shall, if requested by the Supplier, comply with the Supplier’s requirement for Supplier (in addition to terminating this agreement) to:
(a)repossess any of its property in the possession, custody or control of the Customer;
(b)retain any moneys paid;
(c)charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(d)be regarded as discharged from any further obligations under this agreement; and
(e)pursue any additional or alternative remedies provided by law.
(3)The Customer agrees that on expiry or termination of this agreement for any reason, all of its rights in respect of the Services (including its right to access the Application) shall end.
(4)The Customer agrees and acknowledges that the Supplier has no obligation to retain any information relating to the Customer (including Customer Data) and that all such information may be irretrievably deleted by the Supplier after one (1) month from the date of any suspension, termination or expiry of this agreement.
(1)Subject to clause 10(2), any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
(2)Where legislation implies in this agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in this agreement. However, the liability of the Supplier for any breach of such condition or warranty will be limited, at the option of the Supplier, to one or more of the following:
(a)if the breach relates to goods:
(i)the replacement of the goods or the supply of equivalent goods;
(ii)the repair of such goods;
(iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv)the payment of the cost of having the goods repaired; and
(b)if the breach relates to services:
(i)the supplying of the services again; or
(ii)the payment of the cost of having the services supplied again.
(3)To the full extent permissible by law, the Supplier does not provide any guarantee in relation to the performance of the business of the Customer as a result of the use of the Services and/or Application.
Liability of the Supplier
(1)To the extent permitted by law, the Supplier, and any officer, agent, employee and related entity of the Supplier exclude all liability of any of them in respect of any injury, loss or damage (including loss of profits, loss of goodwill, loss of data and any special, direct or consequential loss or
damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this agreement (including in respect of goods or Services supplied pursuant to this agreement). If any liability is not able to be excluded by law, the Supplier and any officer, agent, employee and related entity of the Supplier limit their liability for all claims in aggregate, to paying an amount equal to the Charges paid by the Customer applicable to the period in which the first claimed breach occurred.
(2)Without limiting the following sentence, the Customer warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by the Supplier. The Customer acknowledges that to the extent the Supplier has made any representation which is not otherwise expressly stated in this agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
(3)The Customer shall at all times indemnify and hold harmless the Supplier and its officers, employees, contractors and agents (“those indemnified”) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach by the Customer of its obligations under this agreement or any wilful, unlawful or negligent act or omission of the Customer.
(4)In respect of any claim between the parties under or in connection with this agreement, the parties agree that to the maximum extent permitted by law, this agreement excludes the operation of any laws which would apportion any liability to the Supplier which would not have been so apportioned but for such laws.
(1)A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(2)A party will not be in breach of clause 12(1) in circumstances where it is legally compelled to disclose the other party’s Confidential Information. (3)Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
(4)Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(5)This clause will survive the termination of this agreement.
(1)The Supplier shall not be liable for any delay or failure to perform its obligations under this agreement if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, the obligations of the Supplier will be suspended. If a delay or failure by the Supplier to perform its obligations due to Force Majeure exceeds sixty (60) days, the Supplier may immediately terminate the agreement by providing notice in writing to the Customer.
(2)If this agreement is terminated pursuant to the preceding subclause, the Supplier is not liable to refund any moneys paid by the Customer pursuant to this agreement.
This agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
The Customer must not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder.
No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.
(1)A party will not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this agreement (‘dispute’) unless it has complied with this clause.
(2)A party claiming that a dispute has arisen must notify the other parties, giving details of the dispute.
(3)During the twenty one (21) day period after a notice is given under clause 18(2) (or longer period agreed in writing by the parties to the dispute) (‘initial period’) each party to the dispute (‘disputant’) must use its best efforts to resolve the dispute.
(4)If the disputants are unable to resolve the dispute within the initial period, each disputant agrees that the dispute must be referred for mediation in accordance with the Mediation Rules of the Law Society of New South Wales, at the request of any disputant, to:
(a)a mediator agreed on by the disputants; or
(b)if the disputants are unable to agree on a mediator within seven days (7) after the end of the initial period, a mediator nominated by the then current Chairman of LEADR or the Chairman’s nominee.
(5)The role of any mediator is to assist in negotiating a resolution of the dispute. A mediator may not make a decision that is binding on a disputant unless that disputant has so agreed in writing.
(6)Any information or documents disclosed by a disputant under this clause:
(a)must be kept confidential; and
(b)may not be used except to attempt to resolve the dispute.
(7)Each disputant must bear its own costs of complying with this clause and the disputants must bear equally the costs of any mediator engaged. (8)After the initial period, a disputant that has complied with this clause 18 may terminate the dispute resolution process by giving notice to each other disputant.
(1)This agreement is governed by the law in force in New South Wales, Australia.
(2)Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia, and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
(3)The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this agreement (by virtue of any laws relevant to this agreement) is excluded.
(4)Without preventing any other mode of service, any document in an action including, without limitation, any writ of summons or other originating process or any third or other party notice may be served on a party by being delivered to or left for that party at its address for service of notices under clause 19(5).
(5)A notice, approval, consent or other communication in connection with this agreement must be in writing unless expressly specified otherwise. (6)Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received.
(7)Any present or future legislation which operates to vary an obligation or right, power or remedy of a party in connection with this deed is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
(1)Where the Customer has gained access to our Application because of an Integration Solution developed by a Spoke Developer then this Section 20 applies to the Customer.
(2)To the full extent permitted by law, the Supplier will not be liable to a Customer for non-performance, non-access or defects to the Application cause directly or indirectly by the Integration Solution or the act or omission of the Spoke Developer. In these circumstances, the Customer’s rights will be as against the Spoke Developer.
(3) The Supplier may immediately terminate or suspend this Agreement and the Customer’s access to the Application in circumstances where:
(a) Charges and Additional Charges invoiced by the Supplier to the Spoke Developer or the Customer have not been paid in respect of the Services in accordance with the terms of this Agreement;
(b) The Spoke Developer has breached the terms of its agreement with the Supplier regarding the the development and publication of the Integration Solution;
(c) The Spoke Developer has caused technical issues which affect the performance of the Application.
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