1 Definitions and Interpretation
The following definitions apply unless the context requires otherwise.
Additional Charge means a charge in accordance with Scratchie’s standard rates from time to time, or as otherwise reasonably determined by Scratchie or agreed with the Customer.
Agreement means these Terms and Conditions.
Application means Scratchie’s web and/or mobile software application, which operates a remuneration and incentive system, and it includes but is not limited to any and all improvements, developments, modifications, derivatives and variations of such software and/or application from time to time and where the context permits, it includes any Documentation.
Award means consideration given, either by way of cash or in kind or otherwise, to promote occupational health and safety culture and compliance within the Customer’s business operations.
Award Giver means the Customer or Entity personnel who are issuing the Scratchies to the Customer’s Personnel.
Award Recipient is any person who has been a Recipient of an Award.
Bonus Prize means 1% of all money deposited into all Wallets connected to the Application, less the Scratchie Administration Fee and Merchant Fee and any refunds, deducts, credits or chargebacks.
Bonus Prize Allocation means 1% of the money deposited by the Customer into the Customer’s Wallet, less the Scratchie Administration Fee and Merchant Fee and any refunds, deducts, credits or chargebacks.
Business Day means a day on which banks are generally open for business in New South Wales other than a Saturday, Sunday or public holiday.
Business Hours means 9.00am to 5.30pm Sydney time on Business Days.
Certified Party means a party that Scratchie has trained in the relevant aspects of the Application.
Commencement Date means the commencement date of this Agreement specified in the Subscription Plan.
Confidential Information means the confidential information of a party and includes information relating to, in the case of Scratchie:
(a) its personnel, policies and business strategies;
(b) the terms upon which the Application and other products have been supplied, installed and/or supported pursuant to this Agreement;
(c) the pricing and payment terms set out in this Agreement;
(d) the design and content of the Application and the Documentation; and
(e) any information made available to the Customer or an Entity via the Application and/or the Website.
Customer means the Customer named in the Subscription Plan.
Customer Super Administrator means the Customer’s nominated Personal who has the highest level of authority to create Awards, invite and allocate Award Givers and establish Work Sites, and may include a Certified Party.
Customer Work Site Administrator means the supervisor of a Work Site which allocates Award Gives in relation to a Work Site.
Customer Wallet means the digital wallet for the Customer to provide consideration for an Award.
Documentation means the authorised user guides and manuals that are delivered or made available by Scratchie to the Customer for use with the Application.
Entities means the legal entities identified in the Subscription Plan or approved in writing by Scratchie. For the purposes of interpreting the Licence Agreement, an "Entity” includes a Joint Venture.
Event of Insolvency means:
(a) a controller, manager, trustee, administrator or similar office is appointed in respect of the Customer or an asset of the Customer;
(b) a liquidator or provisional liquidator is appointed to the Customer;
(c) any arrangement is made with the Customer's creditors;
(d) the Customer is unable to or fails to pay its debts as and when they fall due;
(e) a default judgement is ordered against the Customer;
(f) an application is made, a resolution passed or a meeting convened for the purpose of considering a resolution to wind up the Customer; or
(g) any other similar event occurs under any law applying to the Customer.
Any of the above terms defined in the Corporations Act 2001, have the meaning assigned in that Act.
Fees means the Plan Pricing, the Maintenance and Support Fees (if any) and/or any Additional Charges, fees, charges, expenses or payments specified in this Agreement.
Force Majeure means a circumstance beyond the reasonable control of a party and which results in that party being unable to observe or perform an obligation on time under this Agreement (other than an obligation to make a payment). Such circumstances include but are not limited to:
(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, pandemics or epidemics, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) failure of internet and telecommunication services.
Intellectual Property Rights means copyright, trademark, design, patent, semiconductor, circuit layout rights, the right to keep confidential information confidential and any other rights in the nature of intellectual property rights.
Plan Pricing means the pricing and fees associated to the Customer’s use of the Application as specified in the Subscription Plan and this Agreement.
Maintenance and Support Fees means the maintenance and support fees (if any) specified in the Subscription Plan and this Agreement.
Maintenance and Support Services means the maintenance and support services (if any) specified in the Subscription Plan and this Agreement.
New Release means:
(a) a new release of the Application providing for a significant change in technology; and/or
(b) a new generally available version of the Application containing corrections of programming errors and/or functional enhancements.
Personnel means employees or contractors of the Customer and/or Entities and any other persons approved by Scratchie.
Merchant Fee means the fee, charge, expense or transaction costs for depositing money into Customer Wallet.
Recipient is a person who has scanned a Scratchie QR Code which has been sent to them to receive an Award.
Representative means any officer, employee, agent, consultant, contractor or other representative.
Scratchie Administration Fee means 20% of the amount of money deposited into the Customer Wallet on each occasion, plus GST.
Award Giver Scratchies means the on-the-spot rewards issued by the Customer to the Personnel.
Scratchie QR Code means the QR Code which is generated by Scratchie for the Award Giver to issue an Award.
Services means any services performed by Scratchie pursuant to this Agreement and any other services referred to in the Subscription Plan and Maintenance and Support Services.
Subscription Plan means the subscription plan selected by the Customer as amended and varied from time to time which is outlined in detail on the Website and includes any trial offered by Scratchie.
Terms and Conditions means the terms and conditions set out in clauses 1 to 19 of this document.
Use means to directly or indirectly activate the processing capabilities of the Application, load, execute, access, utilise, store, employ the Application, or display information resulting from such capabilities.
Wallet means any digital wallet used for the purposes of issuing any Award using the Application.
Website means the website at www.scratchie.com.
Work Site means a specific location of a work site which the Customer is performing building or civil works.
2 Licence Grants and Restrictions
2.1 Subject to the Customer’s compliance with this Agreement, including payment of all Fees, Scratchie grants to the Customer a non-exclusive, non-transferable licence to access and use the Application for the Customer’s own business purposes during the term of this Agreement.
2.2 The Application may only be used:
(a) by the Customer and Entities;
(b) for Award Givers;
(c) in accordance with this Agreement; and
(d) in accordance with the Documentation and any written instructions from Scratchie.
2.3 If the Customer requires to add Entities (subject to Scratchie's approval of the Entity), the Customer will provide Scratchie with a written request. Scratchie will implement the request within a reasonable time of receiving it in accordance with this Agreement.
2.4 The Customer is responsible for the use, supervision, management and control of the Application and the Documentation. The Customer must ensure that any copy of the Application is permanently deleted from any hardware the Customer or an Entity sells or otherwise disposes of.
2.5 Except as otherwise expressly permitted under this Agreement, the Customer must not (and must not allow a third party, including any Entity) to:
(a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Application or any portion thereof;
(b) distribute, transfer, grant sub-licences to, or otherwise make available the Application or any portion thereof to third parties, including as an application service provider, service bureau, or rental source, unless otherwise authorised in writing by Scratchie;
(c) embed or incorporate in any manner the Application into other applications of the Customer or third parties other than as authorised in applicable Documentation or by Scratchie in writing;
(d) create modifications to or derivative works of the Application;
(e) reproduce the Application;
(f) attempt to modify, alter, or circumvent any licence control and protection mechanisms within the Application;
(g) Use or transmit the Application in violation of any applicable law, rule, or regulation which includes but is not limited to issuing a Scratchie for any kind of consideration whatsoever which may be deemed a breach of any applicable law with respect to gambling, lotteries or a game of chance;
(h) demonstrate the Application to a competitor of Scratchie;
(i) intentionally access, use, or copy any portion of the Documentation or the Application to directly or indirectly develop, promote, distribute, sell, or support any product or service that is competitive with the Application; or
(j) remove, obscure, or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink, or other designation included on any display screen within the Application (“Scratchie’s Marks”).
The Customer shall be responsible for all damages and liabilities incurred as a result of such actions.
3 Delivery, Acceptance and Administration Level
3.1 Upon the Customer’s acceptance of this Agreement and deposit in the Customer’s Wallet, Scratchie will make the Application available to the Customer for use through delivery of a password protected account. The Application is deemed accepted upon delivery to the Customer, provided that such acceptance shall not in any way impact the warranties as provided in this Agreement.
3.2 Once the Application is made available to the Customer, the Customer will then be granted permission to nominate, appoint and establish the various administration levels within the Application which includes but is not limited to:
(a) Customer Super Administrator;
(b) Customer Work Site Administrator;
(c) Award Giver;
(d) Award Receiver; and
(e) Certified Party.
4 Change Requests
4.1 If the Customer requires any changes or enhancements to the Application, the Customer will provide Scratchie with a written request.
4.2 If Scratchie agrees to implement a request to change or enhance the Application, which is a matter in Scratchie's sole discretion, Scratchie will advise the Customer of Scratchie's proposal for implementation including the Additional Charges.
4.3 Within 30 days of receipt of Scratchie's proposal (or such other time as is agreed), the Customer must notify Scratchie in writing whether the Customer accepts the proposal, after which the Customer will be deemed to have refused the proposal. If the Customer accepts the proposal the parties will sign a variation in accordance with clause 18.5.
4.4 The Customer acknowledges and agrees that Scratchie may include any changes, enhancements or developments requested by the Customer in future New Releases.
5 Customer’s Obligations
5.1 The Customer will comply with and will be responsible for its Award Givers’ compliance with the terms and conditions of this Agreement, Scratchie’s Acceptable Use Policy available via the Application or the Website, and all applicable laws and regulations with respect to use of the Application. The Customer shall be responsible for all loss, damage and liabilities incurred by Scratchie as a result of failure to comply with this clause.
5.2 For the avoidance of doubt, the Customer and its Personnel are strictly prohibited from using the Application, or issuing Awards, to aid, abet, assist or facilitate any bet, wager, lottery service, gaming service, wagering service, gambling service which includes but is not limited to the placing, making or receiving or acceptance of bets, lottery, lottery tickets or a game which is to be played for money or anything else of value (Gambling Services).
5.3 The Customer is responsible for procuring, installing, configuring, and maintaining all hardware and operating systems required to run the Application, as set forth in the Documentation.
5.4 The Customer acknowledges that the operation of the Application may not always be completely error free and without interruption. The Customer and Entities should:
(a) implement data backup and verification measures in accordance with best industry practice; and
(b) keep in force throughout the term of this Agreement appropriate insurance against any loss that may be suffered in the event of failure, defect or error in the Application. Scratchie is not liable for any loss suffered by the Customer as a result of a failure to comply with this requirement.
5.5 The Customer may print and make such number of copies of the Documentation as it reasonably requires to use the Application in accordance with this Agreement. All copies are the property of Scratchie (or its third party licensors) and must contain all proprietary notices that appear on the original copy.
5.6 The Customer is solely responsible for any data, text, files, information, images, graphics, and other content or materials that its Award Givers upload to the Application (collectively, “Customer Data”). Scratchie does not claim ownership of any Customer Data. By submitting and uploading Customer Data, the Customer grants Scratchie a non-exclusive, worldwide, transferable, irrevocable right and licence to use, store, reproduce, modify, distribute, publicly perform, and publicly display the Customer Data for the purpose of providing the Application and Services to the Customer and for deidentifying, benchmarking and reporting purposes.
5.7 The Application may utalise location based technology to identify a Users general location to. By using this Application, you acknowledge that your approximate location may be monitored in order to facilitate the Services.
6 Scratchie’s Obligations
6.1 Scratchie, or its third party hosting provider, will establish and maintain commercially reasonable administrative, physical, and technical safeguards designed to:
(a) protect the security and confidentiality of Customer Data;
(b) protect against anticipated threats or hazards to the security or integrity of Customer Data; and
(c) protect against unauthorised access to or use of Customer Data.
7.1 Without limiting anything else in this Agreement, in order for Scratchie to perform any Services successfully and in a timely manner, Scratchie requires the Customer's timely co-operation, including:
(a) providing reasonable access to the Customer personnel, materials, information and facilities to assist Scratchie with its Services;
(b) arranging access to third parties where applicable;
(c) ensuring that appropriate back-up, security and virus checking procedures are in place for any computer facilities the Customer provides;
(d) making senior executives available for consultation on request;
(e) providing reasonable working facilities for Scratchie; and
(f) making decisions promptly to facilitate the performance of the Services.
7.2 Unless expressly agreed to be fixed, any timeframes for the provision of Services (including without limitation any specified in the Subscription Plan) are estimates and are not contractually binding. Estimates of time for completing the Services are given on the assumption (among other things) that Scratchie receives the co-operation and commitment from the Customer as specified in clause 7.1.
7.3 If the Customer does not perform or delays in performing any of its obligations (including those specified in clause 7.1), Scratchie is entitled, if it reasonably deems necessary, to vary any timetable and to pass on to the Customer any resulting costs or expenses as Additional Charges. Scratchie will advise the Customer of any likely or foreseeable delays and give the Customer a chance to rectify these likely delays before Scratchie applies Additional Charges.
7.4 In the course of providing the Services, Scratchie will rely on information supplied by the Customer or others. Scratchie is not obliged to verify the accuracy and completeness of that information. If any information provided is materially incorrect, Additional Charges may apply.
7.5 Scratchie is entitled to sub-contract any of the Services at its sole discretion.
7.6 Scratchie may, at the Customer's request, provide additional consulting services relating to this Agreement for an Additional Charge.
7.7 Scratchie will distribute the Bonus Prize on the 15th of June and 15th of December each year in accordance with the Bonus Prize terms and conditions found on the Website from time to time.
8 Fees and Payment
8.1 The Customer agrees to pay the:
(a) Scratchie Administration Fee;
(b) Merchant Fee; and
(c) Bonus Prize Allocation.
8.3 The Customer agrees and acknowledges that where a request for the payment of the processing fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the processing fee.
8.4 The Customer agrees and acknowledges that any money deposited into the Customer Wallet is non-refundable, and where this Agreement is terminated, the balance of the Customer’s Wallet may be transferred to Scratchie and the Customer will have not claim, right, suit, demand or action against Scratchie for any loss, damage, cost or expense with respect to the recovery or refund of the balance in the Customer Wallet.
8.5 Without limitation, Additional Charges may apply:
(a) where these terms and conditions have been varied or amended, which will take effect immediately from the time the terms and conditions have been varied or modified;
(b) for any work required to be undertaken by Scratchie to implement a request made under clause 2.3: and
(c) to reflect an increase in Maintenance and Support Services required as a result of the implementation of a New Release, additional modules, customisations, enhancements or features (if any).
8.6 Except for Additional Charges, which may be invoiced as and when incurred, all other fees will be charged at the time the Customer deposits money into the Customer’s Wallet.
8.7 Scratchie may have security mechanisms installed into its Application to eliminate piracy of the Application. In using the Application, the Customer acknowledges and understands that the Application may include a security mechanism that can detect the installation or use of the Application including illegal copies of the Application, and collect and transmit data about the use of the Application. The data collected will not include any customer data created in using the Application. In using the Application, you consent to such detection and collection of data, as well as its transmission and use if an illegal copy or access has been detected. Scratchie also reserves its right to use a hardware lock device, license administration software and/or a license authorization key to control access to the Application. You must not take steps to avoid or defeat the purpose of any such measures.
8.8 Scratchie reserves the right to seek verification of the Entities, number of Award Givers and Personnel by carrying out an audit of the Entities, Award Givers and Personnel numbers at the premises of the Customer and any Entity ("physical audit”) either itself or using an independent third party selected by Scratchie at Scratchie's sole discretion and/or by using any electronic control mechanism designed for this purpose. Scratchie will give the Customer reasonable notice of a physical audit. The Customer must, and must procure that an Entity must, provide Scratchie or its nominated representative with access to premises, personnel and computer systems as reasonably required by Scratchie or its nominated representative to verify the number of Award Givers and Personnel and that the use of the Application is in compliance with this Agreement (and any other applicable terms). If the Customer is in breach of the Agreement (or other applicable terms), the Customer must pay all fees, costs and expenses associated with:
(a) the audit;
(b) the increase in Entity numbers; and
(c) any increase in Maintenance and Support Services,
as Additional Charges. Scratchie's rights under this clause survive termination or expiration of this Agreement.
8.9 Scratchie is entitled to:
(a) reimbursement of expenses for travel, accommodation or such other expenses as are properly incurred in the performance of its obligations under this Agreement as Additional Charges and will submit invoices to the Customer for any reimbursements together with all appropriate and reasonable documentation to support the claim. Where requested by the Customer, Scratchie must obtain the Customer's written approval of contemplated travel for the performance of the Services prior to incurring any costs and/or other expenses; and
(b) charge (as Additional Charges) for travel time which is the time taken for any Scratchie Representative to travel from Scratchie's office to the Customer's office for performance of Scratchie's obligations under this Agreement.
8.10 Subject to clause 8.7, the Customer must pay all invoices (without any set off, deduction or withholding whatsoever) within 14 days of the date of the invoice. Scratchie may charge interest on any amount not paid by the due date at a rate equal to two percent above the Corporate Overdraft Reference Rate of the Commonwealth Bank of Australia from time to time applicable for monthly charging cycles.
8.11 The Customer must notify Scratchie of any dispute in relation to an invoice within 14 days of the date of the invoice and the reasons for the dispute or the full amount becomes due and payable in accordance with clause 8.6. If the Customer disputes in good faith any amount on an invoice, the Customer must pay the portion of the invoice not in dispute within 14 days of the date of the invoice. If it is agreed that some or all of the disputed amount was properly payable, then the Customer must immediately pay that amount together with interest in accordance with clause 8.6.
9 Goods and Services Tax
9.1 In this clause, terms used have the meaning given to them by the GST Law as defined in Section 195-1 of the A New Tax System (Goods and Services Tay) Act 1999 (the “GST Act”).
9.2 If a party to this Agreement (the “Supplier”) makes a supply under or in connection with this Agreement and is liable by law to pay GST on that supply, the consideration otherwise payable by the recipient of the supply will be increased by an amount equal to the GST paid or payable by the Supplier.
9.3 If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing ("reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party is the amount of the reimbursable expense net of any input tax credit or reduced input tax credit to which the other party is entitled in respect of the reimbursable expense.
9.4 If a party to this Agreement has the benefit of an indemnity for a cost, expense, loss or outgoing (“indemnified cost”) under this Agreement, the indemnity is for the indemnified cost net of any input tax credit or reduced input tax credit to which that party is entitled in respect of the indemnified cost.
9.5 Each party agrees to do all things, including providing tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, set-off, rebate or refund in relation to any amount of GST paid or payable in respect of any supply under this Agreement.
9.6 Subject to the operation of this clause, all amounts in this Agreement are GST exclusive.
10.1 Except as provided in this clause, a party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
10.2 A party is not in breach of clause 10.1:
(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information; or
(b) if it discloses Confidential Information (other than of a technical nature) to its related companies, solicitors, auditors, insurers and accountants or in the case of Scratchie, to third parties solely for the purposes of performing this Agreement.
10.3 Each party must take all reasonable steps to ensure that its employees, agents and sub-contractors do not make public or disclose the other party's Confidential Information.
10.4 Each party agrees to promptly notify the other party of any unauthorised access to or disclosure of the Confidential Information.
10.5 The receiving party agrees that any breach of this clause may cause irreparable harm to the disclosing party, and such disclosing party shall be entitled to seek equitable relief in addition to all other remedies provided by this Agreement or available at law.
10.6 The Customer must on demand return to Scratchie any Documentation supplied by Scratchie in connection with this Agreement.
11.1 Subject to clauses 11.2, 11.4 and 18.6 and otherwise to the extent permitted by law:
(a) the total aggregate liability of Scratchie to the Customer for loss or damage arising from or in relation to this Agreement, whether arising from breach of contract, tort (including negligence), in equity or otherwise, is limited to the Scratchie Administration Fee the 3-month period immediately preceding the event giving rise to the loss or damage;
(b) Scratchie is not liable to the Customer and the Customer has no right of set off, for:
(i) any loss of data, goodwill, interest, revenues, profits, contracts or any inaccuracy of data; or
(ii) any indirect, special, incidental, consequential, exemplary, punitive, or aggravated damages or loss; or
(iii) any internal costs and expenses (whether director indirect) howsoever incurred,
arising from the negligence of, or any breach of this Agreement by, Scratchie or its Representatives even if Scratchie has been advised of the possibility that such damages may occur,
(c) Scratchie is not liable for loss or damage arising from third party products or services.
11.2 Nothing in this Agreement limits Scratchie's liability to an individual for death or personal injury caused by a negligent or wilful act or omission of Scratchie or its Representatives.
11.3 No warranty, condition or term (“term”) applies to this Agreement unless it is set out in this Agreement or is implied by law and cannot be excluded, modified or restricted. Without limiting clause 11.4:
(a) the Application is supplied on an “as is” basis; and
(b) the Application is suitable for use in Australia only. If the Customer intends to use the Application in, or in relation to, any other jurisdiction it does so at its own risk.
(a) any term is implied into this Agreement by law, and the law prohibits the exclusion, restriction or modification of that term or liability under it, then that term shall be deemed to be included in this Agreement;
(b) a statutory guarantee applies to goods or services supplied under this Agreement;
then, to the extent permitted by law, Scratchie's liability for breach of that term or guarantee is limited to (at Scratchie's option):
(c) in relation to services, re-supplying the services or paying for them to be re-supplied; and
(d) in relation to goods, re-supplying them, or paying for having them re-supplied.
11.5 The Customer will at all times indemnify and hold harmless Scratchie and its Representatives from and against any loss, costs (including reasonable legal costs and expenses) or liability incurred or suffered by Scratchie or its Representatives arising from any proceedings against Scratchie or its Representatives where such loss, costs or liability was caused by:
(a) a breach by the Customer or an Entity of its obligations under this Agreement (or any other applicable licence terms);
(b) any wilful, unlawful or negligent act or omission of the Customer, an Entity or their Representatives; or
(c) a claim by a third party alleging an infringement of that third party's Intellectual Property Rights if such infringement relates to an actor omission of the Customer, a User, an Entity or their Representatives.
12 Term and Termination
This Agreement continues until terminated in accordance with this Agreement.
12.2 Immediate Termination
(a) Either party may terminate this Agreement effective upon written notice if the other party has an Event of Insolvency.
(b) Scratchie may terminate this Agreement or any Subscription Plan effective upon written notice if:
(i) Scratchie is required to do so by law; or
(ii) the provision of the Application to you by Scratchie is, in the opinion of Scratchie, no longer commercially viable or has become impractical or unfeasible.
12.3 Termination with notice
(a) Termination by the Customer
(i) The Customer may terminate this Agreement for any reason.
(ii) The Customer may terminate this Agreement:
(A) if Scratchie breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
(B) for any reason by providing Scratchie with 60 days’ written notice.
(b) Termination/Suspension by Scratchie
(i) Scratchie may, at its option, suspend all Licences for the Application and Services provided to the Customer or terminate this Agreement:
(A) if the Customer fails to pay a minimum of $2,000.00 into the Customer’s Wallet per month, in aggregate over a 6 month period;
(B) if the Customer breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
(C) if the Customer has less than $500.00 in the Customer’s Wallet and has not issued an Award for more than 30 days; or
(D) for any reason by providing the Customer with 60 days’ written notice.
12.4 The Customer must notify Scratchie of:
(a) any change to the Customer's relationship with an Entity; and
(b) any Entities to which the Agreement is no longer to apply.
12.5 Scratchie reserves the right to terminate an Entity’s right to use the Application after receiving a notice under clause 12.4(a) or if the Entity breaches a term of this Agreement.
12.6 On the termination or expiry of this Agreement:
(a) the Customer and any Entities must no longer use the Application and the Documentation;
(b) the Customer must pay any outstanding Fees to Scratchie, and Scratchie may deduct the amount owing from the Customer’s Wallet;
(c) other than as provided in clause 14.4, Scratchie may retain any moneys paid;
(d) Scratchie may charge a reasonable sum for work performed up to termination in respect of which work no sum has previously been invoiced or paid;
(e) Scratchie will be released from any further obligations under this Agreement;
(f) either party may pursue any additional or alternative remedies provided by this Agreement or law;
(g) each party must return any property (including Confidential Information) of the other; and
(h) all copies of the Application and any Documentation must be returned to Scratchie and permanently erased from all equipment and storage devices used by the Customer and the Entities, regardless of whether such equipment and storage devices are owned by the Customer, the Entities or a third party.
12.7 Any clauses of this Agreement which are capable of having effect after the expiration or termination of this Agreement will continue to remain in full force and effect.
13 Personal Information
13.1 Disclosure of personal information to Scratchie is subject to the Privacy Act 1988 (“Privacy Act”). Accordingly, the Services are provided on the understanding that the Customer (and any Entities) will only disclose personal information about an individual to Scratchie:
(a) for a purpose related to the performance of the Services;
(b) provided the Customer (or Entity) has made all disclosures required under the Privacy Act;
(c) provided the Customer (or Entity) obtained any consents required under the Privacy Act to allow Scratchie and its Representatives to handle the information; and
(d) provided to do so would not otherwise breach the Privacy Act.
13.2 As Scratchie relies on the Customer and an Entity to fulfil the obligations in clause 13.1, the Customer indemnifies Scratchie and its Representatives against any claim, loss or expense resulting from the failure of the Customer or an Entity to make any disclosure or obtain any consent required under the Privacy Act or to otherwise comply with the Privacy Act.
13.3 If the performance of the Services requires a third party to supply personal information to Scratchie on the Customer's request, it is the Customer's obligation to ensure that the third party complies with clause 13.1 and the Customer indemnifies Scratchie against any claim, loss or expense resulting from that party's failure to do so, or to otherwise comply with the Privacy Act.
14 Intellectual Property
14.1 Any Intellectual Property Rights:
(a) in the Application;
(b) database(s) design;
(c) in the Documentation;
(d) in any changes, modifications, developments or enhancements made to the Application or the Documentation by Scratchie or anyone else (including Customer specific modifications);
(e) arising from Scratchie's provision of the Services; and
(f) on the Website,
are owned and are the sole property of Scratchie or its licensors.
14.2 Scratchie indemnifies the Customer against any finally awarded damages or settlement amounts approved by Scratchie arising out of or in connection with a claim that the use of the Application in accordance with this Agreement infringes a third party's copyright or an Australian patent, provided that the Customer:
(a) notifies Scratchie immediately of any infringement or claim of which it is aware and does not make any admissions without Scratchie's prior written consent;
(b) at Scratchie's request and expense, allows Scratchie to conduct and/or settle all negotiations and litigation resulting from any such claim,
(c) assists and fully co-operates with Scratchie in the defence or settlement of the claim; and
(d) does not take and ensures that no Entity takes any action that prejudices Scratchie's ability to defend or settle the claim.
14.3 Notwithstanding anything to the contrary in this Agreement, Scratchie is not responsible or liable for any infringement of a third party’s Intellectual Property Rights if the infringement would not otherwise exist except for:
(a) the use of the Application with any other software or equipment;
(b) any corrections to or modifications of the Application database other than by Scratchie (even if performed by a Certified Party);
(c) modifications to the Application in compliance with the Customer's specifications or requirements;
(d) a failure to promptly implement a New Release made available by Scratchie;
(e) any breach of this Agreement by the Customer or an Entity, or any unauthorised use, access or modification to the Application by the Customer, an Entity or a third party,
and in such circumstances Scratchie's obligations under clause 14.2 do not apply.
14.4 If the Application is or is likely to become the subject of a claim of infringement, Scratchie may at its sole discretion:
(a) procure for the Customer and any Entity the right to use the Application or the affected part of it;
(b) replace or modify the Application to make it non infringing; or
(c) require the return of the Application and refund to the Customer any Plan Pricing paid for the Application for the remainder of the then current term.
14.5 To the extent permitted by law and subject to clause 18.6, clauses 14.2 to 14.5 state Scratchie's entire liability and the Customer's sole and exclusive remedies for any claim of infringement of third party's rights.
15.1 Other than with Scratchie's prior written consent, the Customer will not hire Scratchie’s Person for employment or under a contract for services, either directly or indirectly (including by a related body corporate or through a recruitment or staffing agency). For the purposes of this clause "Scratchie’s Person” means any person who is either an employee or contractor of Scratchie, either during or for a period of twelve months after termination of, this Agreement or for twelve months after that person's employment or engagement with Scratchie is terminated.
15.2 The Customer must promptly notify Scratchie if a Scratchie’s Person seeks to be employed or contracted by the Customer (or a related body corporate).
15.3 If despite clause 15.1, the Customer hires a Scratchie’s Person without Scratchie's consent, the Customer must immediately pay to Scratchie an amount equal to thirty percent (30%) of the person's remuneration on an annualised basis as at the date of the person's termination with Scratchie.
15.4 The Customer acknowledges and agrees that this provision is reasonable having regard to Scratchie's need to protect its intellectual capital and confidential information. Without limiting Scratchie's right to compensation under clause 15.3, the Customer acknowledges that Scratchie may seek interlocutory relief to prohibit or restrain the Customer from any breach or threatened breach of this clause.
15.5 A breach of this clause is deemed a material breach of the Agreement for the purposes of termination.
16.1 Scratchie may identify the Customer (and an Entity) as a customer of Scratchie and a user of the Application on Scratchie's published customer lists, web site, and in its marketing and advertising materials and announcements. Scratchie may also include non-confidential information about the Customer's business and implementation of the Application. Scratchie may release updated information from time to time.
17 Dispute Resolution
Except as is expressly provided for in this Agreement, if there is a dispute or difference between the parties arising out of or in connection with this Agreement (Dispute), then within five Business Days of a party notifying the other party in writing of the Dispute, a senior representative from each party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
(a) If the Dispute is not settled within thirty (30) days of notification under clause 17.1, the parties must submit the Dispute to mediation administered by the Australian Commercial Disputes Centre.
(b) The Australian Commercial Disputes Centre's Guidelines for Commercial Mediation apply to any mediation under this Agreement and the parties must comply with those rules.
(c) Any mediation meetings and proceedings under this clause must be held in Sydney, New South Wales.
17.3 Court proceedings and other relief
A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this clause, unless the party seeks injunctive or other interlocutory relief.
17.4 Continuation of rights and obligations
Despite the existence of a dispute or difference each party must continue to perform this Agreement.
Any notice, demand, consent or other communication (a "Notice”) given or made under this Agreement:
(a) must be in writing and signed by a person duly authorised by the Customer;
(b) must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail), by hand, by email, or by fax at the address, email, facsimile number shown in the Subscription Plan;
(c) will be conclusively taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, seven Business Days after the date of posting;
(iii) if by email, on the earlier of the Customer receiving an automated message confirming delivery or, provided no automated message is received stating that the email has not been delivered, three hours after the time the email was sent by the Customer, such time to be determined by reference to the device from which the email was sent,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or at a time that is later than 5.30 pm in the place to which the Notice is sent, it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.
(a) The terms of this Agreement shall be binding on the parties and their successors.
(b) Scratchie or the Customer may assign its rights and obligations under this Agreement:
(i) to a third party if any part of the business of Scratchie or the Customer is sold or transferred to that third party; and/or
(ii) provided that Scratchie or the Customer (as applicable) can demonstrate that the assignee is able to perform its obligations under this Agreement.
Scratchie or the Customer may not otherwise assign its rights under this Agreement without the consent of the other party and such consent will not be unreasonably withheld or delayed.
(c) Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void.
18.3 Further assurances
Each party must do anything necessary or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.
18.4 Entire Agreement
The Agreement and any variations to it embody the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations or warranties (“other understandings') in relation to the subject matter of this Agreement are superseded by this Agreement. The Customer acknowledges and agrees that in entering into this Agreement it is not relying on any other understandings (including any express warranties) which are not expressly set out in this Agreement.
This Agreement may only be modified or supplemented by a written document executed by an authorised representative of each party.
18.6 Compliance with the Australian Consumer Law
If the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applies to any supply of goods or services under this Agreement, nothing in this Agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Competition and Consumer Act 2010.
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
(a) Any provision in this Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party.
(b) Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intention of the Parties.
18.9 Remedies cumulative
The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
18.10 No Partnership or Agency
Nothing contained or implied in this Agreement shall be construed to place the Parties in the relationship of partners, joint venturers, principal and agent, or employer and employee. Neither Party shall have the power to assume, create, or incur liability or any obligation of any kind, express or implied, in the name of or on behalf of the other Party by virtue of this Agreement.
18.11 Governing law & Jurisdiction
(a) This Agreement is governed by and is to be construed in accordance with the laws of New South Wales.
(b) With respect to any legal action or proceedings which may be brought with respect to this Agreement or any transaction contemplated by this Agreement (each, a Relevant Action) with respect to any Customer in Australia, each party irrevocably and unconditionally:
(i) submits to and accepts, for itself and in respect of its assets, the non-exclusive jurisdiction of courts exercising jurisdiction in Sydney New South Wlaes in connection with matters concerning this Agreement; and
(ii) agrees that it will not object to the venue or claim that the Relevant Action has been brought in an inconvenient forum.
(c) The United Nations Convention on Contracts for the International Sale of Goods (and any adopting legislation) does not apply to this Agreement.
18.12 Limitation of action
Subject to clause 18.6 and to the maximum extent permitted by law, other than in relation to a claim for breach of Scratchie's Intellectual Property Rights, no claim can be made under this Agreement more than two (2) years after;
(a) the discovery of the circumstances giving rise to the claim; or
(b) the effective date of termination of this Agreement.
18.13 Order of Priority
Where there is any conflict between documents comprising this Agreement, they will prevail in the following order (subject to any variations agreed in accordance with clause 19.5):
(a) the Subscription Plan;
(b) these Terms and Conditions;
(c) any additional documents described in the Agreement in the order listed in these Terms and Conditions.
(a) Other than in relation to clause 18.1, Scratchie may communicate electronically with the Customer.
(b) Electronically transmitted information is not guaranteed to be secure or error free and can be adversely affected or unsafe to use. Scratchie will not be liable in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information.
Nothing in this Agreement will prevent or restrict Scratchie from providing services to customers other than the Customer. Without limiting the foregoing, Scratchie may use all:
(a) skill and knowledge acquired; and
(b) ideas and methodologies developed,
during the course of performing the Services for any purposes, including to perform services for other Customers.
18.16 Force Majeure
(a) Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of a Force Majeure Event.
(b) The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.