Terms and conditions
Sky Software Pty Ltd

1.             Agreement formation

The Agreement will become legally binding on the parties when:

·                     The customers accepts these terms and conditions; and

·                     Sky Software Pay Pty Ltd begins to provide the Services to Customer.

2.             Term of the agreement

Sky Software Pty Ltd will provide the Sky Payroll Service to the Customer. The Agreement continues unless terminated in accordance with the Agreement, or either party provides written notice of permanent cancellation of the Agreement. Cancellation will take effect at the end of the term in which the party gave notice of cancellation.

3.             When amendments take effect

Sky Software Pty Ltd may update the Agreement, including the fees, at its discretion by providing written notice to the Customer. The updates will take effect immediately. Where the Customer does not accept such changes it must immediately notify Sky Software Pty Ltd. Such notice of non-acceptance will cancel the automatic renewal of the Agreement, and the Agreement will cease at the end of the period in which Sky Software Pty Ltd gave notice of changes.

4.             Licence

Sky Software Pty Ltd grants to the Customer a non-transferrable, non-exclusive and revocable licence to access the Services, subject to the terms of the Agreement.

5.             Responsibilities for setup and installation

Sky Software Pty Ltd will be responsible for all aspects of setting up the Services when requested by the Customer except for:

·                     Sourcing Customer information;

·                     Determination of tax rulings and calculation rules.

6.             Provision of information by Customer

The Customer will provide any information reasonably requested by Sky Software Pty Ltd for the purpose of setting up and operating the Services for the Customer. The Customer warrants that:

·                     all of the information that it provides to Sky Software Pty Ltd is accurate and complete in all respects; and

·                     the Customer will inform Sky Software Pty Ltd whenever any such information changes.

7.             Services not locally available

Customer agrees and accepts that the Software is hosted by Sky Systems Pty Ltd and will only be accessible using the Internet, and will not be available “locally” from the Customer’s own servers unless otherwise specified.

8.             Services arrive in parts

Sky Software Pty Ltd may at its sole and absolute discretion provide and charge for the Software in various modules, packages and combinations from which the Customer may choose.

9.             Provider can change services at discretion

Sky Software Pty Ltd reserves the right to upgrade, maintain, tune, backup, amend, add to or remove features from, redesign, improve or otherwise alter the Services at its sole and absolute discretion.

10.          Customer has no back end access

Customer agrees that the Services are managed and supported exclusively by Sky Software Pty Ltd and that no “back-end” access to the Software is available to Customer unless expressly agreed in writing between the parties.

11.          Unintentional inaccessibility

From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, Sky Systems Pty Ltd will use its reasonable endeavours to restore access to the Services as soon as practicable.

12.          Intentional inaccessibility

Sky Software Pty Ltd reserves the right, with 5 days’ notice, to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates.

13.          Agency for external accounts

·                     By entering into the Agreement the Customer irrevocably appoints Sky Systems Pty Ltd its agent for the duration of the Agreement.

·                     The parties agree that the scope of the agency will be limited to use of the External Accounts only.  Customer grants permission to Sky Software Pty Ltd to access its External Accounts.

·                     The parties agree that no partnership, joint venture or contract of employment is created by the agency relationship under the Agreement.

·                     No tripartite legal relationship will exist between Customer, Sky Systems Pty Ltd and any provider of an External Account.

·                     Customer will be solely liable for any liability incurred by Sky Systems Pty Ltd using any External Account.

14.          Parts of the services controlled by third parties

Sky Software Pty Ltd agrees and accepts that the Services are operated from servers owned and controlled by a third party. As such, Customer acknowledges that certain functions are out of the control of Sky Software Pty Ltd, including:

·                     Data access during an outage; and

·                     Physical access to servers.

15.          Delivery of support and maintenance

Sky Software Pty Ltd will provide support and maintenance in respect of the Services via email and helpdesk jobs, as determined at the sole and absolute discretion of Sky Software Pty Ltd.

16.          Additional work

·                     If Customer requires support and maintenance outside the scope of the Agreement, Sky Software Pty Ltd may charge Customer for it under a separate agreement.

·                     If Sky Software Pty Ltd determines at its sole and absolute discretion that the requirement for any work outside the scope of the Services is caused by the fault or error of Sky Software Pty Ltd, Customer shall not pay for that additional work.

17.          Calculation of fees for the services

Customer will pay Sky Software Pty Ltd in exchange for the Services.

18.          Timing for payment of the fees

Customer authorises Sky Software Pty Ltd to effect automatic payment transactions by credit card or via electronic payments on an ad-hoc basis and agrees to do all things necessary to facilitate such automatic payments.

19.          Fees exclusive of GST

All fees quoted for the Services by Sky Software Pty Ltd are exclusive of GST unless expressly stated otherwise. Customer will be responsible for paying any taxes or duties, including GST that applies to the provision of the Services.

20.          Failure to pay

If Customer fails to pay Sky Software Pty Ltd any amount under the Agreement on the due date for payment, Sky Software Pty Ltd may immediately do any or all of the following, without any liability, until all overdue fees are paid:

·                     charge the Customer interest on the overdue amount at 5% above the Reserve Bank of Australia cash rate;

·                     suspend Customer’s use of any or all of the Services;

·                     terminate the Agreement without any obligation to refund Customer any money in respect of the cancellation, even if the contractual term of the Agreement has not expired;

·                     initiate proceedings against Customer to recover the overdue amount (despite any dispute resolution clause in the Agreement); and

·                     recover all costs in relation to any action taken against Customer to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.

21.          Authorised users

·                     Customer may designate Authorised Users.

·                     Customer warrants that all of the information provided to create an Authorised Account (whether that information is provided by an Authorised User or Customer) is accurate and complete in all respects, and will update Sky Systems Pty Ltd whenever any of this information changes.

·                     Customer is responsible for ensuring that Authorised Users comply with the Agreement to the fullest extent the Agreement applies to the use of Authorised Accounts.

22.          Third party accounts

·                     If Customer wishes to open a Third Party Account, the Customer must request Sky Software Pty Ltd to do so in writing. Sky Software Pty Ltd may, at its absolute and sole discretion, choose:

o         to open, or not to open, any Third Party Account requested by Customer;

o         to charge fees for any Third Party Accounts; or

o         to contract, or not to contract, with any Third Party User.

·                     Customer agrees and acknowledges that Sky Software Pty Ltd will contract with the Third Party User under the Third Party Terms, and that no access to the Services can be granted to Third Party Users until they have agreed to the Third Party Terms.

·                     Customer acknowledges and agrees that Sky Software Pty Ltd may cancel access to a Third Party User that is in breach of the Third Party Terms.

·                     Customer is aware of a breach by a Third Party User of the Third Party Terms, it is obligated to notify Sky Software Pty Ltd with detailed particulars of the breach.

23.          Customer undertakings in relation to services

Customer undertakes:

·                     to use the Software only as it was designed to be used;

·                     not to use the Software in any way which could interfere with or damage Sky Software Pty Ltd’s network, any other operator’s network, or another Customer’s enjoyment of the Software;

·                     not to use the Software for unsolicited or unreasonably frequent or voluminous communications;

·                     not to publish or otherwise communicate any review of, or information about, the Services to any third party without the prior written consent of Sky Software Pty Ltd, except as specifically provided for in an agreement with Sky Software Pty Ltd;

·                     not to disable or circumvent any protection or disabling mechanism related to the Services;

·                     not to install or store any software applications, code or scripts on or through the Services unless it first obtains the written permission of Sky Software Pty Ltd;

·                     not to use the Services to bully, harass, degrade, insult or otherwise demean any person (as determined by Sky Software Pty Ltd) or to partake in offensive or indecent conduct; and

·                     not to store, access or operate any data, code or software on, or in connection with, the Software that could be categorised or identified as:

o         a computer virus or malicious code;

o         pornographic material; or

o         “warez” or associated with “warez”.

Customer will be responsible for the breach of any undertaking or warranty in this clause regardless of whether that breach is caused by a security breach of any kind.

24.          Customer will use services in accordance with the law

Customer undertakes:

·                     to ensure that all electronic communications sent through or in connection with the Software feature an unsubscribe facility, and that they comply with the requirements of the SPAM Act 2003 (Cth) when sending electronic communications through the Software; and

·                     not to store or access any Data on the Services if such access or storage would:

o         breach any Intellectual Property Right;

o         breach any Privacy Law; or

o         breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).

25.          Provider right to suspend

Sky Software Pty Ltd reserves the right to:

·                     limit or suspend the Customer’s access to the Services; and

·                     remove data or content uploaded to the Services by the Customer,

if Customer breaches any of its obligations or undertakings in the Agreement.

26.          Technical information

·                     All Technical Information is for informational purposes only, and is to be used or relied on at Customer’s own risk.

·                     Sky Software Pty Ltd makes no warranty or representations as to the accuracy of the Technical Information.

·                     There may be technical or administrative errors in the Technical Information.

·                     Sky Software Pty Ltd reserves the right to correct any errors in the Technical Information and on the Software interface without any notice to Customer.

27.          Third party content

The inclusion of any third party link does not imply any endorsement or recommendation of a linked website by Sky Software Pty Ltd. Sky Systems Pty Ltd will not be responsible for any third party advertising content displayed on the interface of the Software. Any link on the Software to a third party website, or decision to accept any third party offer, is entirely at Customer’s own risk.

28.          Provider security responsibilities

Sky Software Pty Ltd will take reasonable steps to ensure that the Software is secure from unauthorised access consistent with generally accepted industry standards in Sky Software Pty Ltd’s industry.

29.          Customer security responsibilities

Customer is solely responsible for:

·                     keeping any usernames and passwords associated with its account for the Services secure; and

·                     the use of its account, irrespective of who is using it, even if it is used without Customer’s permission.

30.          Data storage with third party

Sky Software Pty Ltd may subcontract the storage of the Data to a third party (or multiple third parties) without notification to or consent from Customer.

31.          Backup

·                     Sky Software Pty Ltd makes no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any backups in connection with the Services.

·                     Customer acknowledges that Sky Software Pty Ltd has recommended Customer take reasonable steps to back up its Data separately from the Services.

32.          Data management after termination

·                     Sky Software Pty Ltd will have the right to delete any Data 3 months after the Agreement is terminated (Retention Period).

·                     Customer may obtain the Data within the Retention Period if it bears the costs of the hardware and incidental costs reasonably required by Sky Systems Pty Ltd to effect a transfer of the Data to Customer (Return Costs).

·                     Sky Software Pty Ltd will not be obliged to return Data to Customer until Customer has paid the Return Costs in advance to Sky Software Pty Ltd, as well as any outstanding payments owed to Sky Software Pty Ltd.

33.          Confidentiality

·                     A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

·                     A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.

·                     Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

·                     Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party's Confidential Information.

34.          Notification

Customer must notify Sky Software Pty Ltd in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened:

·                     breach by any person of any obligation in relation to the Confidential Information; or

·                     theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

35.          Privacy policy

Customer agrees and consents to Sky Software Pty Ltd’s handling of Personal Information in accordance with Sky Software Pty Ltd’s Privacy Policy, available at www.skysystems.tech.

36.          Data disclosure

Sky Software Pty Ltd may access, review or copy on its own account, or disclose and transfer to any third party, any Data or Personal Information, to the extent required:

·                     to permit third party service providers to perform their services in connection with Sky Software Pty Ltd’s business;

·                     to interact with Sky Software Pty Ltd’s related bodies corporate;

·                     to effect a sale (or proposed sale) of all or part of Sky Software Pty Ltd’s business;

·                     to satisfy any contractual obligation that Sky Software Pty Ltd has to any third party;

·                     where Customer has overdue fees, to debt collection agencies or its legal advisers to recover the amount due;

·                     for Sky Software Pty Ltd to ensure that Customer is not in breach of the Agreement; and

·                     as required or permitted by any law that Sky Software Pty Ltd and its related bodies corporate may be subject to.

37.          No privacy warranty

Sky Software Pty Ltd makes no warranty as to whether Customer’s use of the Services will comply with the Customer’s obligations under Privacy Law. It is the Customer’s responsibility to determine whether the Services are appropriate for Customer’s circumstances.

38.          Changes in response to privacy law

Sky Software Pty Ltd may make any changes to the Services that it considers, at its sole and absolute discretion, to be beneficial for compliance with:

·                     Privacy Law; or

·                     any guidance issued by the Office of the Australian Information Commissioner,

and will immediately notify Customer of any such change.

39.          Customer’s notification obligations

Customer undertakes that when it stores any Personal Information on the Services, it will notify the relevant individuals that such information may be accessible by Sky Software Pty Ltd.

40.          Ownership of data

The Customer shall at all times during the course of the Agreement be the exclusive owner of the Intellectual Property Rights in the Data.

41.          License over data

Customer grants Sky Software Pty Ltd a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licensable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add to, process, analyse and use and commercialise, in any way now known or in the future discovered (subject to the Privacy Act), any Data.

42.          Provider intellectual property

Sky Software Pty Ltd owns the Product IP, and in any circumstances where it does not automatically have such ownership, the Customer will transfer it to Sky Software Pty Ltd and will do all things necessary to ensure that full legal ownership of the Product IP passes to Sky Software Pty Ltd.

43.          Licence to intellectual property in services

Sky Software Pty Ltd grants to Customer a non-exclusive royalty-free licence to use the Product IP for the sole purposes of accessing and using the Software in accordance with the Agreement. This licence will automatically terminate when the Agreement terminates.

44.          Undertakings regarding intellectual property

Customer warrants that it will not do any of the following, or permit any person over whom it has effective control to do so:

·                     copy or reproduce, or create an adaptation or translation of, all or part of the Product IP in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Services in accordance with the Agreement;

·                     incorporate all or part of the Product IP in any other webpage, site, application or other digital or non-digital format;

·                     (subject to other rights explicitly granted under the Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Services on any medium; or

·                     directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Services or any documentation associated with them.

45.          Exclusion of express warranties

Sky Software Pty Ltd makes no warranties or guarantees:

·                     that the Services will be accessible at all times, uninterrupted or error free;

·                     that any of the Software is without bugs or viruses;

·                     that any of the Technical Information is without error or inaccuracy;

·                     that the Services are immune to unauthorised access or security breach; and

·                     in respect of the retention of, or continued accessibility of, any Data.

46.          Limitations, exclusions and indemnities subject to the law

All limitations, exclusions and indemnities in the Agreement are subject to Non Excludable Conditions to the extent of any inconsistency, and apply to the fullest extent permissible by the law.

47.          Exclusion of implied conditions

To the fullest extent available under the law, Sky Software Pty Ltd excludes all implied guarantees, conditions and warranties from the Agreement and the Services, except any Non Excludable Condition.

48.          Limitation of liability

Sky Software Pty Ltd excludes all other liability to Customer for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by Customer in connection with the Agreement or the Services, including in connection with:

·                     the Services being inaccessible to Customer for any reason;

·                     incorrect or corrupt data, lost data, or any data inputs or outputs of the Services;

·                     computer virus, trojan and other malware in connection with the Services;

·                     any breach of security that results in unauthorised access to or corruption of data;

·                     any unauthorised activity by any third party in relation to the Services;

·                     any breach of an agreement with a third party by the Customer connected with the Services;

·                     failure of any third party component including, without limitation, hardware failure, network failure, or power failure;

·                     failure of any third party software including, without limitation, the operating system and any other software;

·                     Customer’s use of or reliance on the Services for a purpose other than the business purposes of Customer or the reasonably expected purpose of the Services;

·                     the use of or reliance on the Services by persons other than Customer or Authorised Users of the Services;

·                     Customer or any authorised user’s infringement of any third party Intellectual Property Rights by use of the Services;

·                     Customer’s use of or reliance on the Services where the Services have not been updated to the most recent version of the Services with all updates, upgrades, fixes and other improvements as released by Customer as of that date;

·                     any breach of the Agreement by Customer including breach of Customer’s undertakings;

·                     any loss or damage to property arising directly or indirectly from the use of the Services;

·                     Provider’s breach of the Agreement; or

·                     any act or omission of Provider.

The foregoing limitation applies however the Costs are caused whether they arise in contract, tort (including by Sky Software Pty Ltd’s negligence), or under statute.

49.          Operation of compulsory conditions

Where a Non Excludable Condition is deemed to apply, to the fullest extent possible under the law, Sky Software Pty Ltd limits its liability for any breach to:

·                     in the case of goods:

o         the re-supply of the goods or payment of the cost of the re-supply of the goods; or

o         the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and

·                     in the case of services:

o         the re-supply of the services affected by the breach; or

o         the payment of the cost of such re-supply of the services.

50.          General indemnity

Customer indemnifies the Indemnified against all Costs suffered or incurred by the Indemnified, however caused, arising wholly or partially, directly or indirectly, in connection with the Agreement or Customer’s use of the Services.

51.          Specific indemnities

Without limiting the generality of the section entitled “General indemnity” in the Agreement, the Customer indemnifies the Indemnified against any Costs arising directly or indirectly from:

·                     Customer’s breach of the Agreement;

·                     Customer or any authorised user's infringement of any third party Intellectual Property Rights while using the Services;

·                     Customer’s failure to fulfil any of its obligations in the “Privacy” clause of the Agreement;

·                     Customer’s breach of Privacy Law;

·                     any harm to or claim by a third party arising directly or indirectly from Customer’s use of the Services;

·                     any negligent or unlawful act or omission by Customer in connection with the Services;

·                     Provider’s or a third party’s reliance on a misleading representation made by a Customer;

·                     a contract in force between Customer and a third party connected with the Services;

·                     Provider’s enforcement of its rights in connection with the Agreement, including legal costs on a full indemnity basis;

·                     Customer storing Data on the Service;

·                     providing access to Data, or a subset of the Data, to a person who has requested such access in accordance with Privacy Law;

·                     Provider being obligated to correct Data upon request by a person in accordance with Privacy Law;

·                     any complaints process initiated by a person under Privacy Law; or

·                     any other cost incurred by Provider as a result of a person pursuing rights conferred upon them by Privacy Law.

52.          Conditions of indemnity

·                     The Indemnified may make a claim under indemnities in the Agreement in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.

·                     The indemnities in the Agreement shall be in addition to any damages for breach of contract to which Sky Software Pty Ltd may be entitled. Nothing in the indemnities in the Agreement will be construed so as to prevent Sky Systems Pty Ltd from claiming damages in relation to Customer’s breach of any term of the Agreement.

53.          Provider termination for convenience

·                     Sky Software Pty Ltd reserves the right to withdraw from or cancel the Agreement at any time without giving reasons, by providing Customer notice in writing no less than two weeks before the cancellation is to take effect.

·                     If Sky Software Pty Ltd exercises its right to terminate without giving reasons in accordance with the Agreement, Customer will receive a pro-rated refund of money paid for the remainder of the Agreement.

54.          Termination on insolvency

Either party may immediately terminate the Agreement by notice to the other party if the other party suffers an Insolvency Event.

55.          Termination for breach

If Customer breaches any provision of the Agreement, Sky Software Pty Ltd may give Customer a written notice that immediately terminates the Agreement.

If Sky Software Pty Ltd exercises its right to terminate in accordance with this clause, Sky Software Pty Ltd will not be obliged to refund any money to Customer.

56.          Dispute resolution procedure

Initiation of Dispute

If there is a Dispute, then either party may notify the other with a Resolution Notice, which:

·                     includes, or is accompanied by, full and detailed particulars of the Dispute; and

·                     is delivered within 14 days of the circumstances giving rise to the Dispute first occurring.

Meeting to resolve Dispute

Within 14 days after a Resolution Notice is given, a representative (with the authority to resolve the dispute) of Customer and Sky Systems Pty Ltd must meet and seek to resolve the Dispute.

Mediation

If the representatives of Customer and Sky Software Pty Ltd do not resolve the Dispute within 30 days, the Dispute will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules .

Mediation to final and binding arbitration

If the Dispute is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to final and binding arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations .

Costs for mediation / arbitration process

When the Dispute is submitted to mediation or arbitration, each party will pay its own Costs for the proceedings. The parties will share equally the Costs payable to The Institute of Arbitrators & Mediators Australia .

Court proceedings not to be brought before process

Subject to this section, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

Parties can seek urgent injunctive relief

Nothing in the Agreement prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

Obligations and rights remain current during dispute

Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement and any other agreement between the parties.

Dispute resolution provisions subject to non-excludable conditions

The obligations set out in the Agreement in relation to dispute resolution are available to the fullest extent available under the law, and subject to the Non Excludable Conditions to the extent of any inconsistency.

57.          Dispute resolution not to apply to debts

The dispute resolution procedure set out in this clause will not apply in any instance where Sky Software Pty Ltd seeks to enforce a debt in connection with the Agreement.

58.          Unforeseen events

·                     The obligations of Sky Software Pty Ltd under the Agreement are suspended to the extent that an Unforeseen Event affects them, as long as the Unforeseen Event continues. The occurrence of an Unforeseen Event does not suspend the obligation of Customer to pay any money under the Agreement.

·                     A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.

·                     If an Unforeseen Event continues for more than 60 days, Sky Systems Pty Ltd may terminate any agreement in force for the provision of the Services by notice in writing to Customer of not less than 14 days.

59.          Communications

·                     Communications must be in writing.

·                     Either party may serve any Communication on the other party by sending it to that party’s email address. A Communication by email will be taken to have been received by the addressee 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email was not delivered to the addressee's domain specified in the email address.

60.          Entire agreement

The Agreement represents the entire agreement between Sky Systems Pty Ltd and Customer in relation to the Services. Neither party has entered into the Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other unless it is set out in the Agreement.

61.          Duties and taxes

Customer will pay all stamp duties and any related taxes, fines and penalties in respect of the Agreement and the Services.

62.          Variation

The Agreement cannot be varied, except by the written agreement of the parties. No purchase order or other document issued by Customer will vary any Agreement, or be considered when considering the terms of agreement between Sky Software Pty Ltd and Customer.

63.          Assignment and novation

·                     Customer cannot assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of Sky Systems Pty Ltd.

·                     Sky Software Pty Ltd may assign, novate or otherwise transfer any of its rights or obligations under any Agreement to a third party without notice to, or the prior consent of, Customer, but if Sky Software Pty Ltd requires, Customer will sign any documents to give effect to an assignment, novation or transfer by Sky Software Pty Ltd under this clause.

64.          Multiple parties as Customer

If more than one party contracts with Sky Software Pty Ltd under the Agreement as Customer, the term Customer refers to each of them, and the obligations of Customer under the Agreement bind them, jointly and severally, and any obligation or a liability assumed by more than one Customer binds them jointly and severally.

65.          Electronic execution

The parties agree that both parties may enter the Agreement by way of electronic signature.

66.          Counterparts

The Agreement may be executed with any number of counterparts and by the parties on separate counterparts.

67.          Governing law

The laws of the state of New South Wales govern the Agreement and each party submits to the non-exclusive jurisdiction of the courts in that jurisdiction.

68.          Waiver

No right of Sky Software Pty Ltd will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

69.          Relationship of parties

The relationship between Sky Software Pty Ltd and Customer under any Agreement does not form a joint venture or partnership.

70.          Interpretation

In this document, headings are for convenience only and do not affect the interpretation. Unless the context indicates a contrary intention:

·                     a reference to any party includes that party's executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

·                     an obligation or liability assumed by, or a right conferred on 2 or more parties binds or benefits all of them jointly and each of them severally;

·                     a reference to a statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;

·                     a reference to any document (including this document) is to that document as varied, novated, ratified or replaced from time to time;

·                     words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;

·                     a reference to "$" or "dollar" is to Australian currency; and

·                     the word "includes" in any form is not a word of limitation.

71.          Definitions

Agreement

means the legally binding contract arising between the parties under this document and the Proposal.

Authorised Account, Authorised Accounts

means a sub-account, under the auspices of Customer’s overall account with Sky Software Pty Ltd, which is operable by an employee, agent or contractor of Customer.

Authorised User, Authorised Users

means

·                     an employee, agent or contractor of Customer; or

·                     any other third party,

authorised by Customer to use an Authorised Account.

Communication, Communications

means any written communication including each notice, consent, approval, request and demand under or in connection with the Agreement.

Confidential Information

means information that is by its nature confidential, including but not limited to information relating to the:

·                     personnel, policies, practices, Customerele or business strategies of the parties;

·                     Intellectual Property Rights of either party; and

·                     the terms of the Agreement,

but does not include information:

·                     already rightfully known to the receiving party at the time of disclosure by the other party; or

·                     in the public domain (including information made publicly available via a mechanism in the Services by Customer) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.

Consequential Loss

means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Cost, Costs

means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.

Data

means any data uploaded by Customer or any user associated with Customer to the Software or any other electronic servers and infrastructure used to provide the Services.

Dispute

means any dispute arising between Customer and Sky Software Pty Ltd in connection with the Agreement.

External Account, External Accounts

means any electronic account held by Customer with external account provider.

Indemnified

means Sky Software Pty Ltd and its directors, employees, contractors and agents.

Insolvency Event

means in respect of a party:

·                     the appointment of an administrator, a receiver or receiver and manager in respect of that party;

·                     an application to a court or an order for the winding up of the party; or

·                     the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.

Intellectual Property Right, Intellectual Property Rights

means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Non Excludable Condition, Non Excludable Conditions

means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Personal Information

has the meaning given to that term in the Privacy Act 1988 (Cth).

Privacy Law

means:

·                     the Privacy Act 1988 (Cth); and

·                     any code registered under the Privacy Act or Australian Privacy Principles.

Product IP

means all Intellectual Property Rights subsisting in:

·                     the Software or any part of it; or

·                     any additions or alterations made to the Software, including those made with the input of Customer.

Proposal

means the document provided to the Customer by Sky Systems Pty Ltd setting out the precise scope of the Services associated with the Software.

Resolution Notice

means a notice of Dispute served by a party in relation to the Agreement.

Services

means:

·                     the Software;

·                     any support and maintenance in respect of the Software described in the Proposal;

·                     any training provided in association with the Software; and

·                     any other service rendered by Sky Software Pty Ltd to Customer within the scope of the Agreement.

Software

means:

·                     the software application found at the URL [Software URL] and all of its subdomains, derived URLs and associated URLs; and

·                     electronic infrastructure and configuration used to provide the Services.

Technical Information

means information used, provided and created by the Software, including any information generated in relation to payroll activities.

Third Party Account, Third Party Accounts

means an account providing access to the Software for a third party end user.

Third Party Terms

means the terms and conditions under which a third party end user will contract with Sky Software Pty Ltd to use a Third Party Account.

Third Party User, Third Party Users

means the end user using the Third Party Account under the Third Party Terms.

Unforeseen Event

means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government provider, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code.