Last updated: October 22, 2020

Please read these terms and conditions carefully before using Our Service.

Interpretation

The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Definitions

In this Agreement, unless the context otherwise requires or provides, expressions used in the License Schedule shall have the meanings ascribed to them in the License Schedule and the following expressions will have the meanings ascribed to them below:

1. Agreement means the License Schedule and the Terms and Conditions, and any exhibits or schedules attached thereto.
2. Confidential Information means:
   1. all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure, or ought reasonably be considered as confidential based on its content, nature of the manner of its disclosure; and
   2. the pricing and any negotiated terms of this Agreement, and all related correspondence and discussions; and
   3. in the case of the Software, its design, structure, underlying concepts, organization, architecture and the source code;
   4. Fees means the fees described and calculated in accordance with the Licence Schedule;
   5. Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application; and
   6. License Schedule means the all information provided by the Licensee during the Signup Process, including setup fee, annual fee and other Licensee information.

Terms and Conditions 

In this Agreement, unless the context otherwise requires or provides, expressions used in the Licence Schedule shall have the meanings ascribed to them in the Licence Schedule and the following expressions will have the  meanings ascribed to them below:  

1. Confidential Information means: 
   1. all information provided by one party to the other in connection with this Agreement where such  information is identified as confidential at the time of its disclosure, or ought reasonably be  considered as confidential based on its content, nature of the manner of its disclosure; and 
   2. the pricing and any negotiated terms of this Agreement, and all related correspondence and  discussions; and 
   3. in the case of the Software, its design, structure, underlying concepts, organization, architecture, and the source code; 
2. Fees mean the fees described and calculated in accordance with the Licence Schedule; 
3. Intellectual Property Rights means all intellectual property rights, including all copyright, patents,  trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature,  whether registrable or not and whether registered or not, and any applications for registration or rights to  make such an application; and 
4. Update means any updates to the Software provided by Assignar to overcome defects in the Software or to enhance, improve or provide additional functionality to the Software. 

2. Interpretation 

In this Agreement, the following rules of interpretation apply unless the contrary intention appears: 

1. headings are for convenience only and do not affect the interpretation of this Agreement;
2. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that  word or phrase have corresponding meanings;
3. a reference to:
   1. a party or parties refers to a party or parties to the Agreement from time to time;
   2. a person includes a natural person, partnership, government agency, association, corporation or  other body corporate;
   3. a party includes its successors and permitted assigns;
   4. a document includes all amendments or supplements to that document;
   5. a monetary amount is in Australian dollars; and
   6. a statute, includes references to any subsequently amended, consolidated or re-enacted version of  that statute and all delegated legislation made under it; and
4. a reference to words “include”, “includes” and “including” when used in this Agreement shall be deemed to  be followed by the phrase “without limitation” unless such phrase otherwise appears.

3. Grant of Licence 

3.1 Assignar grants to the Licensee a non-exclusive, non-transferable, limited licence for the Territory to use the  Software and Documentation during the Licence Term solely for its internal business operations directly and strictly related to the Purpose (as described in the Licence Schedule), subject to and in accordance with the terms and conditions of this Agreement.  

3.2 The Licensee must not sell, lease, assign, sub-licence, charge, mortgage, encumber or otherwise transfer or deal  with, in whole or in part, the Software, the Documentation or any rights conferred on the Licensee in accordance  with this Agreement other than as may be expressly provided for in this Agreement. 

3.3 The Licensee must not: 

1. use the Software for any purpose other than the Purpose; 
2. use the Software in any way that might damage the reputation, goodwill or any other rights of Assignar or the Software; 
3. except as expressly permitted by Assignar to the extent that any applicable laws expressly permit Assignar to do such despite this limitation:
   1. reproduce, publish, disseminate, distribute, make error corrections to or otherwise make copies of, modify or adapt the Software or the Documentation or create any derivative works based upon the Software or the Documentation;
   2. decompile, disassemble or otherwise reverse engineer the Software or permit any third party to do  so; or
   3. modify or remove any copyright or proprietary notices on the Software or the Documentation;
   4. grant access to the Software to any person who is not an employee or officer of the Licensee;
   5. use the Software or the Documentation in any way that is against the law; or
   6. workaround any technical or security limitations in the Software, including any digital rights management technologies forming part of such Software.

3.4 The licence granted to the Licensee under clause 3.1 above applies to any Updates to the Software provided to  the Licensee by Assignar, it being acknowledged by the Licensee that Assignar has no obligation to provide any  Updates to the Licensee. 

3.5 For the avoidance of any doubt, nothing in this Agreement: 

1. constitutes an assignment of all or any part of the Software or the Documentation or of the Intellectual  Property Rights in the Software or the Documentation; or 
2. permits, authorises or allows the Licensee to use or deploy the Software in any way that might be used for  or result in the development of any other software of any kind; or 
3. permits, authorises or allows the Licensee to sell, assign, license or encumber the Software or the  Documentation. 

4 Delivery and Security 

4.1 As soon as practicable after execution of this Agreement: 

1. except to the extent that the Software has previously been installed by Assignar, the parties shall arrange a  convenient time and place for Assignar to deliver and install the Software to the Licensee for purposes of  this Agreement; and 
2. Assignar shall provide the Documentation (if any) to the Licensee. 

4.2 The Licensee must limit access to the Software and the Documentation to its employees who have a need to such  access for the purposes of exercising the Licensee’s rights under this Agreement (each, an “Authorised  Person“). No Authorised Person may have access to the Software or the Documentation unless and until he or  she: (i) acknowledges the confidential and proprietary nature of the Software, including compliance with the  matters in clause 7.1 below; (ii) has been trained with respect to the procedures designed to preserve its  confidentiality and security; (iii) agrees to be bound by the obligations set forth in this Agreement, including to not  use the Software or the Documentation in a manner otherwise than as expressly permitted by this Agreement or  that is not directly within the scope of the Purpose (as described in the Licence Schedule); and (iv) acknowledges and agrees to ensure that the requirements set out in this Agreement are met in full. 

4.3 The Licensee must at all times during the Licence Term maintain adequate and reliable security procedures to  ensure that the requirements of this Agreement are met in full and that access to the Software and Documentation  is not provided to any person other than an Authorised Person. The Licensee shall use all commercially  reasonable measures to preserve the security and confidentiality of the Software and Documentation, including,  without limitation, securing the network, server, hard drives and other media on which the Software and  Documentation is stored or maintained. 

4.4 The Licensee must ensure that it records the names of each Authorised Person provided with access to the  Software and immediately provide such records to Assignar following a request in writing by Assignar. 

4.5 The Licensee must immediately notify Assignar if it knows or reasonably suspects that access to the Software has  been provided to a person other than an Authorised Person or that an Authorised Person has used the Software  or the Documentation in a manner that is inconsistent with this Agreement. Any notification provided under this  clause 4.5 must set out all the facts and circumstances known to or reasonably suspected by the Licensee.  

4.6 The Licensee shall be jointly and severally responsible for any violation (including violations arising as a result of  intentional conduct or negligence) of the obligations set forth in this Agreement by any of its employees,  contractors and/or third parties acting on its behalf, including any Authorised Persons, and the Licensee is so  responsible even if the employee, contractor or third party, including an Authorised Person, acted beyond the  instructions or the authority given by the Licensee. 

5 Payment Terms 

5.1 If the Licensee is required to pay any Fees to Assignar in respect of any services provided by Assignar as  identified in the Licence Schedule, the Licensee must pay those Fees to Assignar in accordance with the Licence  Schedule. 

5.2 Unless stated otherwise in the Licence Schedule, Assignar may at any time it deems, in its absolute discretion,  appropriate issue an invoice to the Licensee in respect of any Fees payable in accordance with this Agreement.  

5.3 All Fees become due and payable on the date of any invoice issued by Assignar and must be paid within 14 days  of the date of such invoice, time being of the essence.  

5.4 All amounts payable under this Agreement, unless otherwise stated, are expressed exclusive of GST and all other  taxes, duties and charges imposed or levied. Assignar may invoice and the Licensee must pay to Assignar an  additional amount calculated by reference to the prevailing GST rate, payable at the same time as the payment to  which it relates is made. 

5.5 All payments must be made in full, without set off, withholding, or deduction of any kind. In addition to any other  right Assignar might have, Assignar may charge interest on any unpaid amounts from the date upon which they  fall due compounded daily at a rate 2% higher than the official cash rate target as published by the Reserve Bank  Australia for the period in question.  

6 Intellectual Property 

6.1 The Licensee acknowledges and agrees that the Software and the Documentation and all other related materials  provided by Assignar to the Licensee, including any Confidential Information, are the exclusive property of  Assignar.  

6.2 The Software and the Documentation are licensed, not sold, and nothing in this Agreement constitutes a transfer  of any rights therein, including any and Intellectual Property Rights or any other proprietary or commercial rights, by Assignar to the Licensee. Any rights not expressly granted in this Agreement by Assignar are expressly and  absolutely reserved to Assignar. 

6.3 The Licensee hereby assigns to Assignar any and all Intellectual Property Rights contained in: 

1. any modifications, enhancements or improvements; and 
2. any feedback,  

to the Software and/or the Documentation in any form or medium whatsoever that is provided by the Licensee to  Assignar. 

6.4 The Licensee further agrees to not exercise any moral rights as contained in Part IX of the Copyright Act 1968  (Cth), including rights in any other jurisdiction similar to such rights, that may or may not subsist in any of the  materials described in clause 6.3 (a) and (b) above. 

6.5 The Licensee will not challenge, directly or indirectly, the right, title and interest of Assignar in and to the Software  or the Documentation. The Licensee agrees not to directly or indirectly do anything that might invalidate or put into  dispute the interest of Assignar, including any Intellectual Property Rights, in the Software or the Documentation, nor to register, apply for registration or attempt to acquire any legal protection for any of the Software, the  Documentation or any proprietary rights therein. 

6.6 The Licensee agrees to cooperate fully with Assignar in any litigation relating to the rights, including any  Intellectual Property Rights, in the Software or the Documentation. If any person makes any claim alleging that  any of the Software infringes the Intellectual Property Rights of a third party, the Licensee must promptly notify  Assignar in writing, and: 

1. not make any admissions or take any action in relation to the claim without Assignar’s prior written consent; 
2. permit Assignar to have control over any and all investigations, negotiations, settlement and dispute  resolution proceedings relating to the claim; and 
3. co-operate with, assist and act at all times in accordance with the reasonable instructions of Assignar, in  relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution  proceedings. 

7 Confidentiality 

7.1 A party must not use or disclose Confidential Information of the other party and agrees to keep confidential the  Confidential Information of the other, except: 

1. as specifically provided by this Agreement or to the extent required to perform any obligation under this  Agreement; 
2. to the extent permitted or required by law; 
3. to personnel or advisors on a “needs to know” basis to the extent that it is necessary for them to know the  information for purposes related to this agreement, but only if reasonable steps are taken to ensure  confidentiality is retained; 
4. where the information is or becomes public knowledge, other than through a breach of this Agreement; or 
5. where the information was known to the other party before the date of this Agreement (otherwise than  pursuant to a confidential obligation) or can be shown to have been independently developed by a party. 

7.2 The Licensee must not sell, transfer, assign or otherwise dispose of or grant any licence in relation to any  Confidential Information or make available copies (whether by photocopying, photographic reproduction or by  electronically recorded data or otherwise) of any Confidential Information to any person other than with the prior  written consent of Assignar.  

7.3 Each party acknowledges that a failure to comply with the provisions of this clause 7 would result in irreparable  harm to the other for which a remedy at law would be inadequate, and therefore, in the event of the breach or  threatened breach by a party of its obligations under this clause, the other shall be entitled to seek equitable relief  in the form of specific performance and/or an injunction, in addition to the exercise of any other remedies at law  and in equity.  

8 General Obligations 

8.1 The Licensee must ensure that any computer software and hardware on which the Software is to be installed,  used, manipulate, operated and/or deployed is in good, up to date working order and operating condition, and in  compliance with the Designated Operating Environment and Equipment as specified in the Licence Schedule. 

8.2 The Licensee must take all necessary steps (as determined by the Licensee) to safeguard the integrity and  security of its own data and information, including backing up such data, that is used in connection with the  Software and Assignar is not liable whatsoever for the loss of such data or information.  

8.3 The Licensee must permit Assignar or its nominated auditor to audit the records and premises of the Licensee at  any time during the Licence Term and for one year following the expiry or termination of this Agreement for any  reason, on not less than five days’ prior written notice, and to make and take copies of any documentation that it  might require, for the sole purpose of ensuring and confirming compliance with this Agreement. Audits may not  take place more than once in every 12 month period, in normal business hours and the Licensee must comply  with the reasonable requirements of Assignar or its auditor. 

8.4 The Licensee acknowledges and agrees that it is its own responsibility to procure any technology or other goods or services that it requires in order to use the Software. Assignar expressly disclaims and excludes any and all  responsibility and liability for any failure or inability by the Licensee to use the Software (in whole or in part).  

9 Warranties and Indemnities 

9.1 Each party warrants that it has the right and ability to enter into this Agreement and that this Agreement will be  legally binding on it. 

9.2 Subject to clause 10 below, each party agrees to indemnify and keep the other indemnified from and against all  actions, claims, proceedings, costs, damages, loss and expense (including reasonable legal costs and expenses)  incurred or awarded and paid in respect of, or arising out of, a breach of the terms, conditions, covenants,  warranties and representations, contained in this Agreement or any unlawful or negligent act or omission of the  first-mentioned party. 

10 Limitations on Liability 

10.1 To the full extent permitted by law, Assignar excludes all representations, warranties or terms (express of implied)  other than those expressly set out in this Agreement. 

10.2 The Licensee acknowledges and agrees that Assignar is under no obligation whatsoever to offer to or negotiate  with the Licensee, in good faith or otherwise, a further licence or agreement in respect of the use of the Software  after the expiry or termination of this Agreement. Nothing in this Agreement shall be construed as a representation  by Assignar that it will offer a licence or agreement to the Licensee in respect of the use of the Software after the  expiry or termination of this Agreement. 

10.3 To the fullest extent permitted by law, Assignar excludes all implied conditions and warranties which would  otherwise apply to this Agreement by operation of law. This Agreement is to be read subject to any legislation  which prohibits or restricts the exclusions, restriction or modification of any implied warranty, condition, guarantee  or obligation. If such legislation applies, to the extent possible, the Licensee agrees that Assignar’s liability in  respect of any such claim is limited to either: the replacement or repair of the Software, or the supply of equivalent  goods or services; or the cost of replacing the relevant element of the Software as Assignar determines in its sole  discretion; or the payment of the cost of replacing the Software; or to having the Software repaired.  

10.4 To the fullest extent permitted by law, Assignar excludes all liability for, and in no circumstances will Assignar be  liable for, any indirect or consequential loss or damage suffered by the Licensee or any Authorised Person or  permitted assigns arising out of, in connection with or relating to the performance, breach, termination or non observance of this Agreement by Assignar. The Licensee agrees that loss of profits, loss of business  opportunities, loss of reputation, loss of anticipated savings, loss of revenue, loss of goodwill and loss of contracts  however occurring, will constitute indirect or consequential loss or damage. 

10.5 Notwithstanding any other provision of this Agreement, the maximum aggregate liability of Assignar for any loss or  damage suffered by the Licensee or any claim relating to this Agreement by any person is limited to the total Fees  payable under this Agreement to which the claim relates. 

10.6 Both parties shall use their reasonable endeavours to mitigate any loss, damage, liability, expenses and costs  suffered by them in connection with this Agreement. Each party’s liability for any claim relating to this Agreement  will be reduced to the extent to which the other party contributed to the damage or loss arising from that claim. 

10.7 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, statutory guarantee, right or  remedy implied or imposed by law which cannot be lawfully excluded, restricted or modified. 

11 Term and Termination 

11.1 This Agreement will commence on execution by both parties and continue for the Licence Term, unless  terminated earlier in accordance with this Agreement. 

11.2 Either party may terminate this Agreement by giving notice, equivalent to the Notice Period (see the Licence  Schedule), to the other party. Nothing in this Agreement affects any rights of termination under the general law. 

11.3 Assignar may immediately terminate this Agreement by notice to the Licensee if the Licensee breaches a term of  this Agreement, however, if the breach is capable of being rectified by the Licensee, Assignar must allow the  Licensee a reasonable opportunity, as determined by the circumstances giving rise to such breach and the nature  of the breach, to rectify that breach before Assignar may exercise the right under this clause 11.3.  

12 Consequences of Expiry or Termination 

If this Agreement is terminated or expires for any reason, then, in addition to and without prejudice to any other  rights or remedies available: 

1. the parties are immediately released from their obligations under the Agreement except those obligations  of a continuing nature that by their nature, survive termination and in particular, without limitation, this  clause and clauses 3.2, 3.3. 3.5, 4.5 – 4.6, 5 – 10 and 13;  
2. each party retains the claims it has against the other; 
3. the Licensee’s right to use the Software immediately ceases and the licences granted under this  Agreement terminate;  
4. the Licensee must immediately delete all copies of the Software and the Documentation, and destroy or  return to Assignar (at Assignar’s election) all copies of the Software, all Documentation, all back-up copies  on any medium and all related materials (including Confidential Information) in the possession of, or under the control of, the Licensee; and 
5. the Licensee must immediately pay all outstanding Fees. 

In addition to the above, the expiration or termination of this Agreement does not affect a right, power or remedy  for breach that has accrued to a party before the expiration or termination date.  

13 General 

13.1 This Agreement may only be amended, supplemented or replaced by a later written document signed by all parties.  

13.2 Each party must at its own cost do all things (including executing and delivering any and all documents) necessary  or desirable to give effect to the terms of this Agreement and the arrangements contemplated under it, and use  reasonable endeavours to cause relevant third parties to do likewise.  

13.3 A waiver by a party of a provision of or a right under this Agreement is only binding on the party granting the  waiver if it is given in writing signed by that party and is only effective in the specific instance and for the specific  purpose for which it is given. Any waiver of a right by a party does not preclude another or further exercise of that  right or the exercise of any other right.  

13.4 A failure or delay by one party to compel performance of another party of any of the terms and conditions of this  Agreement does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the  first party to enforce them against the other party at a later time or to pursue remedies it may have for any  subsequent breach of those terms or conditions 

13.5 If a clause or part of a clause is unenforceable, voidable, invalid or illegal, it must be read down so as to be  enforceable, valid and legal. If this is not possible, the clause (or, where possible, the offending part) is taken to be  severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or  parts of the clauses) which will continue in force and effect. This clause has no effect if the severance alters the  basic nature of the contract or is contrary to public policy.  

13.6 This Agreement constitutes the full and complete agreement between the parties relating to its subject matter and  supersedes any and all previous agreements, discussions, understandings, negotiations, undertakings and  representations between the parties in that respect.  

13.7 Any provisions of this Agreement that are prohibited, unenforceable or invalid in whole or in part are only  ineffective to the extent of the prohibition, unenforceability or invalidity and this does not affect the remaining part  of that provision or this Agreement, which will continue in full force and effect .  

13.8 This Agreement is governed by the laws of the State of New South Wales, Australia and the parties submit to the  non-exclusive jurisdiction of the Courts of New South Wales, Australia. 

14 Payment and Fees  

14.1 You agree to pay to Assignar any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service and outlined in this agreement that you have signed. Where applicable, you will be billed using the billing method you select in this license agreement. Fees paid by you are non-refundable, except as provided in these Terms or when required by law. 

14.2 Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are annual. Your subscription will be renewed by an Assignar Account Manager and new terms will be discussed based on usage of the product.

1. The annual license fee outline in the schedule of fees above
2. SMS usage fee, insight users, workers, dashboard users & other modules required.

14.3 All fees outlined in this agreement are exclusive of GST. The GST tax will be added to your subscription at the current rate of 10%. If the rate changes your month subscription fee will be adjusted in accordance with Australian Government Tax Laws. 

14.4 Assignar may change the fees charged for the services at any time, provided that, for services billed on a  subscription basis, the change will become effective only at the end of the then current billing cycle of your  subscription. Assignar will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your subscription before the change becomes efftective.  

14.5 Unless otherwise stated, any overage fees incurred by you will be billed in arrears as per your billing cycle. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable: service being limited, suspended, or teminated (subject to appliable legal requirements), which may result in a loss of your data assoicated with the service.

14.6 By entering your credit card information you are stating that you are an authroised user of the credit card and that  the associated information entered (account holder name, account number, billing address, etc.) is accurate.  

14.7 You authorize Assignar Pty Ltd to charge the amount you have requested to your credit card stated on the credit  card authorization form and if you set up automatic payments, then you authorize Assignar to charge the amount  due for the invoice being paid to the credit card. 

Contact Us

If you have any questions about these Terms and Conditions, You can contact us:

• By email: info@assignar.com
• By visiting this page on our website: /en-au/privacy-policy/