1.1 Accent Software Pty Ltd ABN 40 150 413 246 of Unit BG, 1 Amy Close Wyong NSW 2259 (“Accent Software” “we” “us” or “our”) is the developer and supplier of the Insyte Cloud platform that provides specialised customer relationship management capabilities to the “made to order” industry on a software-as-a-service basis (“Insyte Platform”). Users interact with Insyte Platform using facilities that Accent Software makes available from time to time, which may include the https://www.accentsoftware.com.au/insyte/ website and mobile device apps.
1.2 “Customer” means the person or company that subscribes to purchase access and use of the Insyte Platform for itself and its Users in accordance with this Agreement.
“3P Data Source” means any source of data accessible or utilised by the Insyte Platform which is made available by a third party, including government and commercial databases and processing services.
“Accent Software IP” means all Intellectual Property Rights and moral rights owned or licensed by Accent Software, including all Intellectual Property Rights in or arising out of the Insyte Platform; all related documentation and marketing material; and all modifications, variations, improvements and/or enhancements in or relating to the Insyte Platform, whether developed by Accent Software independently or in conjunction with the Customer or any User.
“Access Fee” means the fee, as specified and amended by Accent Software from time to time, payable by the Customer.
“Analytics Data” means any data processed, compiled, derived or determined by Accent Software or its licensors about or associated with the Insyte Platform, and includes aggregated statistics and data derived from the processing of data stored or processed by the Insyte Platform.
“Billing Reference Date” means the day of each calendar month corresponding to the day of the calendar month on which the Customer Representative registered to use the Insyte Platform.
“Confidential Information” in relation to a party, means all knowledge, information or know-how pertaining to or concerning that party or any of its related entities, including that party’s or related entities’ business, systems, processes, data, customers, properties, assets and affairs, which is disclosed to the other party.
“Customer IP” means all Intellectual Property Rights and moral rights owned or licensed by the Customer in connection with the business of the Customer, including all Intellectual Property Rights in User Content, logos, branding, trade marks and other materials developed by or on behalf of the Customer, or that the Customer is licensed by third parties to use.
“Customer Profile Data” means any data stored or processed within the Insyte Platform about the business of Customer, from which the identity of Customer or any person or business associated with the Customer (including any customer of Customer) can be determined.
“Customer Representative” means either the Customer, or a person who is authorised by the Customer to enter into this Agreement on behalf of the Customer and otherwise bind the Customer to obligations under contract, and who may give irrevocable directions to Accent Software on behalf of the Customer.
“Intellectual Property Rights” means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered designs, trade marks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights.
“Insyte Platform” is defined in clause 1.1.
“User” means an employee, contractor or other representative that is authorised by the Customer to use the Insyte Platform.
“User Content” means data, material or information deposited, entered or added to the Insyte Platform by a User, or by Accent Software on behalf of a User or the Customer, in a manner authorised by this Agreement.
3. SUPPLY OF INSYTE PLATFORM
3.1 On registration by the Customer Representative for use of the Insyte Platform, Accent Software agrees to supply, and the Customer agrees to acquire, the supply of the Insyte Platform in accordance with this Agreement.
3.2 The Customer acknowledges that every right or obligation of the Customer under this Agreement may be exercised or satisfied by the Customer Representative.
4. ACCESS FEES
4.1 You acknowledge that the Insyte Platform is provided on a monthly subscription basis, with all fees for use being due and payable on the Billing Reference Date of the month during which access to the Insyte Platform is to be provided.
4.2 By no later than each Billing Reference Date (“Access Month”), the Customer Representative will receive, and the Customer must pay, a tax invoice for the Fee payable for access to the Insyte Platform during that Access Month.
4.3 The Customer acknowledges that Accent Software has no obligation to permit access to the Insyte Platform by any User if the Customer fails to pay any Fee by the due date and Accent Software will have no liability to any person (including the Customer or any User) if Accent Software suspends or cancels access to the Insyte Platform by any User following any failure of the Customer to pay any amount due under this Agreement by the date due.
5. LICENCE TO USE INSYTE PLATFORM
5.1 Subject to payment of all applicable Fees, a Customer may authorise any person as a User to use the Insyte Platform in accordance with this Agreement. A person may be authorised as a User:
5.1.1 by the Customer Representative (or any person the Customer Representative gives permission to) using registration facilities provided within the Instyle Platforms; or
5.1.2 by Accent Software, if we are directed to do so by the Customer Representative (or any person the Customer Representative has authorised to give directions to Accent Software).
5.2 If you are a User authorised in accordance with clause 5.1, Accent Software grants to you a licence to access and use the Insyte Platform (and to the extent necessary, to install a copy of any app or other software associated with the Insyte Platform on a relevant computing device), in the normal course of business of the Customer and subject to this Agreement.
5.3 As a User, you acknowledge that your access and use of the Insyte Platform:
5.3.1 is authorised by, and subject to any restrictions on access specified by, the Customer;
5.3.2 may be subject at any time without notice to usage restrictions defined by the Customer, such that your access to some or all facilities or data within the Insyte Platform may be restricted or prohibited;
5.3.3 may be limited, suspended or cancelled at any time:
(a) by the Customer Representative or other authorised representative of the Customer;
(b) by us if we are directed to do so by the Customer Representative or other authorised representative of the Customer; or
(c) by us if we reasonably consider a breach of the Agreement (with either you or the Customer) has occurred; and
5.3.4 must not be sub-licensed or assigned by you to any other person without the consent in writing of Accent Software.
5.4 You must not:
5.4.1 make the Insyte Platform available to any third party, unless explicitly authorised by this Agreement or otherwise by Accent Software in writing;
5.4.2 resell or resupply the Insyte Platform to any person or entity;
5.4.3 modify, adapt, reproduce or otherwise use the Insyte Platform for any purpose not explicitly authorised by this Agreement;
5.4.4 disassemble, decompile, reverse engineer or otherwise seek to reveal the operating logic of any part of the Insyte Platform;
5.4.5 use the Insyte Platform in any manner that will, or is likely to, impede or disrupt the supply of services to any other customer of Accent Software; or
5.4.6 use or permit (whether directly or indirectly) the use of the Insyte Platform for any illegal purpose.
6. SUPPLY OF INSYTE PLATFORM AND INTERRUPTIONS
6.1 Subject to this clause 6 and this Agreement, Accent Software will use reasonable commercial efforts to make the Insyte Platform available to Users at all times.
6.2 You acknowledge that:
6.2.1 Accent Software has no responsibility for the availability, quality or relevance of any data made available through the Insyte Platform which is derived from 3P Data Sources;
6.2.2 the Insyte Platform is supplied over the internet, and may be subject to delay, disruption or loss in transmission which is not within the control of Accent Software;
6.2.3 Accent Software may monitor your use of the Insyte Platform for the purposes of maintaining the integrity of Insyte Platform for all customers and otherwise ensuring compliance with this Agreement;
6.2.4 Accent Software does not warrant or represent that the Insyte Platform will be uninterrupted or error free; and
6.2.5 in the event that the Insyte Platform is disrupted or degraded for any reason beyond the reasonable control of Accent Software (including, without limitation, due to any failure of a 3P Data Source), Accent Software will make reasonable efforts to notify you of the problem and of any steps you may take to work around the problem, but Accent Software otherwise has no responsibility or liability for, or obligation to rectify, such problem.
6.3 From time to time, in order to maintain or improve the Insyte Platform, or rectify defects with the Insyte Platform (“Maintenance”), Accent Software may need to disrupt the supply of Insyte Platform, including to the extent that the Insyte Platform may temporarily be partially or entirely unavailable.
6.4 Where it is commercially practical to do so, prior to performing Maintenance Accent Software will:
6.4.1 provide reasonable notice of the estimated time of performance, duration, and extent of any interruption to the Insyte Platform; and
6.4.2 make reasonable efforts to schedule such Maintenance at a time that will minimise the impact of such interruption to the Insyte Platform on you.
6.5 Despite clause 6.4, you acknowledge that where Accent Software determines in its absolute discretion that Maintenance is required as soon as possible to protect the integrity or quality of the Insyte Platform (“Emergency Maintenance”), Accent Software may perform such Emergency Maintenance immediately and without notice to you.
6.6 You acknowledge that the Insyte Platform is provided using internet accessible infrastructure operated by third party service providers, and Accent Software has no liability to you (unless otherwise explicitly accepted under this Agreement) for any failure or disruption of the Insyte Platform to the extent caused or contributed to by a failure of, or disruption to, any third party supplier, third party system or 3P Data Source.
6.7 You acknowledge that Accent Software will not be in breach of this Agreement, and will have no liability to you or any other person arising from any loss or damage suffered, in connection with any disruption, interruption or degradation of the Services arising from Maintenance.
7. ACCENT SOFTWARE SERVICE UPDATES
7.1 You acknowledge that the Insyte Platform is being continuously enhanced and improved, and Accent Software may update the Insyte Platform at any time without notice to you.
7.2 From time to time, at its discretion, Accent Software may provide you with notice of an update to the Insyte Platform, either before or after such update is made, in order to provide you with information about the nature and effect of such update.
8. USER CONTENT
8.1 The parties acknowledge that at all times all rights in, and in respect of, User Content are owned by the Customer.
8.2 In order to supply the Insyte Platform to you and only to the extent necessary to do so, you grant to Accent Software a licence to use, reproduce, modify and communicate all User Content. Accent Software may sub-licence these rights to third party suppliers of Accent Software to the extent necessary or desirable to allow the proper supply of the Insyte Platform.
8.3 You acknowledge that in the course of your use of the Insyte Platform, you are solely responsible for complying with all laws, including privacy laws and Intellectual Property Rights laws, of any relevant jurisdiction, and that User Content must not infringe any such laws.
8.4 You acknowledge that Accent Software may be obliged by law to disclose some or all User Content to government or regulatory authorities. If it is legally entitled to do so, Accent Software will make best efforts to advise you prior to, and where possible consult with you and otherwise use reasonable endeavours to minimise any, such mandatory disclosure.
8.5 You acknowledge that you are solely responsible for:
8.5.1 the accuracy and appropriateness of User Content; and
8.5.2 any error, defect or inaccuracy in any User Content.
8.6 The Customer indemnifies Accent Software, and will keep Accent Software indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) suffered by the Customer, any User, or any other person, resulting from or in connection with:
8.6.1 User Content (including the accuracy, or any error, defect or inaccuracy, of User Content); and
8.6.2 any infringement of any law arising from or in connection with User Content; or
8.6.3 the use or disclosure of personal information of any customer of the Customer.
8.7 Accent Software will provide a facility within the Insyte Platform for the Customer to create a copy of all User Data in an industry standard format at any time. You acknowledge that this facility is provided to allow for the creation by Customer of backups of User Data.
8.8 You acknowledge that, other than by providing the facility referred to in clause 8.7, Accent Software has no obligation to create or maintain backups of any part of the Insyte Platform or User Data, and will have no liability to you or any other person for any loss arising from any failure to create or maintain backups.
9. ANALYTICS DATA
9.1 Except to the extent prohibited by clause 9.2, you acknowledges that Analytics Data:
9.1.1 may be collected and generated by Accent Software;
9.1.2 may be derived or compiled from Customer Profile Data; and
9.1.3 may, subject to clause 9.2, be used by Accent Software for any of its internal business purposes, including product development.
9.2 Accent Software acknowledges that it must not, except to the extent agreed with the Customer in writing:
9.2.1 manipulate Analytics Data in a way that generates Customer Profile Data;
9.2.2 identify the Customer as the source of any Analytics Data; or
9.2.3 make available to any person any Analytics Data which allows that person to identify the Customer as a source of any Analytics Data, or enable the reverse engineering of such Analytics Data to identify the Customer or reveal any Customer Profile Data.
9.3 You acknowledge that Accent Software may be obliged by law to disclose some or all Analytics Data to government or regulatory authorities. If it is legally entitled to do so, in circumstances where Accent Software considers such mandatory disclosure is likely to be of material interest to you, Accent Software will advise you prior to, and consult with and otherwise use reasonable endeavours to minimise any, such mandatory disclosure.
10. ACCURACY OF ACCENT SOFTWARE RESULTS
10.1 The Insyte Platform may include functions to perform (whether automatically, semi-automatically, or as part of a manual process) certain calculations or to provide assessments or reports using data (including User Data, Customer Profile Data and data from 3P Data Sources) stored in, or processed by, the Insyte Platform (“Accent Software Results“).
10.2 You acknowledge that, while Accent Software will make practical commercial efforts to achieve a reasonable accuracy for Accent Software Results, Accent Software Results:
10.2.1 may depend upon generalised data, including data from 3P Data Sources, which may contain errors, inaccuracies, or fail to take account of material variations in design or specification, and the presence of such errors, inaccuracies or failures may not be obvious to Users;
10.2.2 can only be relied upon to the extent that the Accent Software Results relate to a business of the Customer in the “made to order” industry (for example, the window furnishing industry);
10.2.3 notwithstanding sub-clause 10.2.2, Accent Software has no responsibility for any inaccuracy in Accent Software Results arising from any error or inaccuracy in any generalised data referred to in sub-clause 10.2.1 (including any 3P Data Source), Customer Profile Data or User Content; and
10.2.4 other than as referred to in sub-clause 10.2.2, cannot and must not under any circumstances be relied upon for any accounting, business critical, taxation, commission, salary, wage or regulatory purpose.
10.3 You acknowledge that:
10.3.1 the legal obligations upon any business, including the business of the Customer, will vary depending on factors pertinent to that business including without limitation its business activities, geographic location and the laws, regulations and industry guidelines that may apply in any particular circumstance, and you are solely responsible for determining and ensuring your compliance with those laws and obligations;
10.3.2 the Insyte Platform is prepared on a general basis for use by businesses in the “made to order” industry, and may not be appropriate or complete for your specific circumstances or requirements; and
10.3.3 Accent Software does not guarantee or warrant the completeness, accuracy or currency of any part of the Insyte Platform, including without limitation the Accent Software Results.
10.4 Other than for reliance explicitly permitted by this clause 10.2, the Customer indemnifies Accent Software, and will keep Accent Software indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) suffered by the Customer, any User, or any other person, resulting from the reliance by such person on any Accent Software Results.
11.1 You acknowledge that you are solely responsible for the use, supervision, management and control of your access to the Insyte Platform and you will ensure that access to the Insyte Platform is protected at all times from misuse or unauthorised use.
11.2 You acknowledge and agree that Accent Software has no liability to you for any loss or damage suffered by you or any other person resulting from any unauthorised use or misuse of the Insyte Platform by any person (other than a representative of Accent Software).
12. TERM AND TERMINATION
12.1 This Agreement starts on the day on which the Customer Representative registers to use the Insyte Platform, and continues until terminated in accordance with this clause.
12.2 Either Accent Software or the Customer may by notice (which may be given using the Insyte Platform, or any other method specified by Accent Software from time to time) to the other party terminate this Agreement, and such termination will take effect on and from the next Billing Reference Date.
12.3 Either Accent Software or the Customer may terminate their Agreement immediately if:
12.3.1 the other party breaches any material provision of this Agreement and fails to remedy the breach within 5 business days (for the avoidance of doubt, the obligation to pay Fees by their due date is a material provision);
12.3.2 the other party breaches a material provision of this Agreement where the breach is not capable of remedy; or
12.3.3 an event of insolvency affecting the other party occurs.
12.4 If you are a User, you acknowledge that Accent Software may terminate your Agreement immediately and without notice to you if Accent Software’s agreement with the Customer is terminated for any reason.
12.5 On termination of the Customer’s Agreement for any reason, Accent Software will deliver (by email or such other reasonably accessible method provided by Accent Software) a copy of the User Content in an industry standard format to the Customer Representative. Following delivery of that copy of the User Content, all access to the Insyte Platform by Users will be terminated.
12.6 Unless instructed to do so sooner by the Customer Representative, Accent Software will permanently destroy all User Content stored on or in connection with the Insyte Platform 30 days after the end of this Agreement.
13. CONFIDENTIAL INFORMATION AND PRIVACY
13.1 Each party must maintain the confidentiality of the other party’s Confidential Information and will not without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement. Each party must take all precautions reasonably necessary to prevent any unauthorised use, disclosure, copying, publication or dissemination of the other party’s Confidential Information, including at a minimum those taken by that party to protect its own Confidential Information.
13.2 Despite clause 13.1, you acknowledge that the Insyte Platform is provided using cloud-hosted infrastructure operated by a third party service provider, and all data stored or processed by the Insyte Platform, including any data incorporating your Confidential Information, will by technical necessity be provided to, and stored by, the third party service provider in accordance with its security and confidentiality protocols. You acknowledge that Accent Software will have no liability to you under this Agreement if any Confidential Information is disclosed to any person or body due to an act or omission of the third party service provider that provides the infrastructure on which the Insyte Platform operate.
13.3 Personal information collected, used or disclosed by Accent Software for the purposes of providing the Insyte Platform will only be collected, used or disclosed in the following manner:
13.3.1 for the purposes of meeting Accent Software’ obligations under this Agreement (which may include providing personal information to third party suppliers of Services);
13.3.2 to respond to any queries that you or the Customer may have;
13.3.4 in accordance with the Privacy Act 1988 (Cth).
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Subject to clause 14.2, Accent Software warrants that no third party Intellectual Property Rights will be infringed by your use of the Insyte Platform in accordance with this Agreement.
14.2 You acknowledge that:
14.2.1 certain material available to you through the Insyte Platform may be supplied from 3P Data Sources, and may be subject to licence conditions and restrictions specified by the operator of the 3P Data Source; and
14.2.2 you are solely responsible for ensuring that your use of any material supplied from 3P Data Sources will be in compliance with any licence conditions or restrictions specified by the operator of the 3P Data Source.
14.3 You warrant that:
14.3.1 to the extent any User Content or Customer IP includes any material in which a third party owns Intellectual Property Rights, including without limitation any third party Intellectual Property Rights in any logos, trade marks or copyright material, you have all rights and licences necessary or desirable to use such material with the Insyte Platform; and
14.3.2 no third party Intellectual Property Rights are or will be infringed by your use of the Insyte Platform, including any such third party Intellectual Property Rights in any Customer IP or User Content.
14.4 Each party acknowledges and agrees that:
14.4.1 any Intellectual Property Rights existing prior to the date of this Agreement will not be affected by this Agreement;
14.4.2 all Intellectual Property Rights in Accent Software IP are owned by Accent Software (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers any right, title or interest in any of the Accent Software IP to you; and
14.4.3 all Intellectual Property Rights in Customer IP are owned by the Customer (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers to Accent Software any right, title or interest in any of the Customer IP.
14.5 During the term of this Agreement, you grant to Accent Software a worldwide, royalty free licence to use, reproduce, modify and adapt Customer IP and User Content to the extent necessary for Accent Software to supply the Insyte Platform.
14.6 Subject to clause 14.2, Accent Software will be liable for and will indemnify you from and against any liability and/or any loss or damage arising directly from any claim that your use of the Insyte Platform in accordance with this Agreement infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the result of your act or omission, or those of your representatives or any of your subcontractors (other than Accent Software) or the Customer or any User.
14.7 The Customer will be liable for and will indemnify Accent Software against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from any claim that the use of Customer IP or User Content in accordance with this Agreement or any directions of the Customer, the Customer Representative or any User infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the direct result of an act or omission of Accent Software, its representatives or any of its subcontractors.
15.1 Other than express terms of this Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, including the Competition and Consumer Act 2010 (Cth), the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (“Non-excludable Rights”), you agree that Accent Software excludes all liability arising from any implied or express representations, terms, conditions or warranties that would otherwise apply to the Insyte Platform.
15.2 Except for liability in relation to breach of any Non-excludable Rights and liability under clause 15.4, Accent Software’s maximum aggregate liability to you in contract, including for one or more breaches of any express term or terms of this Agreement, tort (including negligence), statute or otherwise, is limited to an amount equal to the Fees actually paid to Accent Software by the Customer in the month during which the event giving rise to the liability occurred.
15.3 For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), Accent Software’s liability is limited, at its option to, where the breach relates to goods, repairing or replacing those goods, or paying the cost to have those goods repaired or replaced, and where the breach relates to services, supplying those services again, or paying the cost to have those services supplied again.
15.4 Except for liability in relation to breach of any Non-excludable Rights, Accent Software excludes all liability to you for lost profits, lost revenue, lost savings, lost data (including loss of any User Content) and any consequential or indirect loss arising out of, or in connection with the Insyte Platform and any claims by any third person (including a User or any customer of the Customer) or otherwise arising under this Agreement, even if Accent Software knew that the loss was possible, or the loss was otherwise foreseeable.
15.5 Notwithstanding any other provision of this Agreement, Accent Software will not be liable for any loss or damage caused by its failure or delay to supply the Insyte Platform due to anything outside the reasonable control of Accent Software including but not limited to your acts or omissions, system or network failure, failure of any telecommunications facilities or the act or omission of any third party.
16.3 Other than as permitted by clause 16.1, this Agreement may only be varied by written agreement between Accent Software and the Customer.
17.1 This Agreement constitutes the entire agreement between the parties in relation to any matter dealt with in this Agreement and supersedes any earlier agreement or understanding between the parties and any earlier condition, warranty, indemnity or representation imposed, given or made by a party, in relation to that subject matter.
17.2 You must not assign or novate the benefit of this Agreement without Accent Software’s prior written consent (which will not be unreasonably withheld).
17.3 You agree that Accent Software may assign or novate this agreement to any person at any time, without further notice to you, and this Agreement constitutes your prior consent in writing to such assignment or novation.
17.4 Waiver of any power or right under this Agreement must be express and in writing signed by the party entitled to the benefit of that power or right.
17.5 If part or all of any clause of this Agreement is found to be illegal or unenforceable, that part of the Agreement will be deemed severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.
17.6 The parties agree that:
17.6.1 this Agreement may be formed, and will in all respects be binding on the parties if so formed, by any electronic means; and
17.6.2 any requirement under this Agreement that a document or notice be given “in writing” may be satisfied by a document displayed, stored and retrieved by electronic means.
17.7 This agreement is governed by and construed in accordance with the laws in force in the State of New South Wales, Australia, and the parties agree that any legal action will be heard in, and subject to the exclusive jurisdiction of, the courts of New South Wales.