End User Licence Agreement
Please read this Agreement carefully before using SalesChamp. This Agreement is a legal agreement between you (End User) and Lasting Mementos Stationery Pty Ltd ACN 153 743 296 as trustee for LM Group, trading as SalesChamp (Licensor) to use of the Sales Portal and the Documentation.
1.1 Definitions and interpretation
Agreement means the terms and conditions contained in this End User Licence Agreement.
Authorised User means any number of persons authorised by the End User to access and use the Sales Portal and the Documentation.
Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Sales Portal as provided and updated from time to time.
Fees means the Monthly End User Licence Fee and the Initial Set-Up Fee.
Initial Set-Up Fee means the fee charged by the Licensor for establishing the End User and Authorised User accounts as shown at the time that the Parties agreed to this Agreement.
Insolvency Event means circumstances in which a Party takes any corporate action or any steps are taken or legal proceedings are started for:
- its winding-up, dissolution, or liquidation;
- the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it; or
- seeking or being granted protection from its creditors, under any applicable legislation.
Intellectual Property means all industrial and Intellectual Property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Licence means the licence granted pursuant to clause 2(a).
Monthly End User Licence Fee means the monthly fee payable by the End User in exchange for the right to use the Sales Portal for the Term.
Party means either the Licensor, the End User and any of its Authorised Users and Parties means both the Licensor, the End User and any of its Authorised Users.
Sales Portal means the sales portal accessible at http://subdomain.saleschamp.com.au which allows the Authorised User to enter information relating to sales of the End User’s goods or services.
Term means the date the End User pays the Initial Set-Up Fee to the date this Agreement is terminated in accordance with clause 8.
Upgrades means any modifications, new or revised versions of the source code that the Sales Portal requires to operate more efficiently or effectively as determined by the Licensor at its sole discretion.
- one (1) gender includes the others;
- the singular includes the plural and the plural includes the singular;
- a person includes a body corporate;
- a Party includes the Party’s executors, administrators, successors and permitted assigns;
- to an amount of money, to $, $A or dollar is a reference to the currency of Australia;
- a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
- that Statutory Provision as amended or re-enacted from time to time; and
- a statute, regulation or provision enacted in replacement of that Statutory Provision.
- including and similar expressions are not words of limitation.
- where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
- headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.
a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
2. Right to use
- The Licensor grants the End User a worldwide, non-exclusive, non-transferable, limited Licence, without the right to sub-license to use the Sales Portal and the Documentation for the End User’s own internal business purposes for the Term in exchange for payment of the Fees.
- The End User may:
- use the Documentation with the Sales Portal only for the purpose of which it was provided; and
- use the Sales Portal only for the purpose for which it was created.
- The Licensor retains all right, title and interest in and to all Intellectual Property in the Sales Portal and the Documentation.
- The End User acknowledges that it does not acquire any Intellectual Property rights, either express or implied, in the Sales Portal and the Documentation beyond the terms contained in this Agreement.
- The End User retains all Intellectual Property in:
- the data the End User provides to the Licensor for the creation of the End User account; and
- the data that the End User enters into the End User account.
2.2 Provision of support
- Provided that the Sales Portal functions and is fit for purpose, the Licensor will provide minimal support, maintenance, Upgrades, modifications or new releases at its discretion
- The Licensor may provide support, maintenance, Upgrades, modifications or new releases of the Sales Portal as the Licensor considers appropriate.
2.3 Specific prohibitions
The End User agrees that they must:
- not use the Sales Portal for any purpose or in any manner other than as set out in clause 2(a);
- not use the Sales Portal in any way that could damage the reputation of the Licensor or the goodwill or other rights enjoyed by the Licensor;
- not permit any third party to obtain access to the Sales Portal or Documentation;
- not reproduce, make error corrections to or otherwise modify or adapt the Sales Portal or Documentation or create any derivative works based on the Sales Portal or Documentation;
- not de-compile, disassemble, decrypt, or otherwise reverse engineer the Sales Portal or permit any third party to do so;
- not transfer, sublicense, rent, lease or lend the Sales Portal or use it for third-party training, commercial time sharing or service bureau use;
- not modify or remove any copyright or proprietary notices associated with the Sales Portal or Documentation; and
- supervise and control the use of Sales Portal by the Authorised Users and ensure that the Authorised Users use the Sales Portal in accordance with the terms contained in this Agreement.
3. Use of accounts
3.1 Authorised User Accounts
- The End User may have as many Authorised User accounts as it requires for its internal business purposes.
- The End User must notify the Licensor of the Authorised Users’ details as required by the Licensor to establish the Authorised Users’ accounts.
- The End User acknowledges that it is responsible for providing correct information regarding the Authorised Users’ information.
- The Licensor will create Authorised User accounts upon receipt of all information required from the End User.
- The End User is responsible for the Authorised Users’ use of the Sales Portal and Documentation and for ensuring that the Authorised Users comply with the terms of this Agreement.
3.2 Account and password
The End User and its Authorised Users must keep all usernames and passwords provided by the Sales Portal strictly confidential. The End User and the Authorised Users are expressly prohibited from sharing their account details with third parties, however they may access the Sales Portal from whatever location they like.
3.3 Termination of accounts
- The Licensor reserves the right to limit, cancel, suspend or terminate an Authorised User’s account or the End User’s account, without notice, if the Licensor considers that the Authorised User or End User is breaching the terms and conditions of this Agreement or that the use of the Authorised User or End User may breach a third party’s Intellectual Property rights.
- The Licensor is not liable for claims, demands or damages (including actual and consequential) of any kind for closing an Authorised User account or End User account where the End User or any of its Authorised User are the cause of the fault.
- End Users agrees to pay:
- the Initial Set-Up Fee; and
- the Monthly End User Licence Fee.
- The Licensor will establish the End User and Authorised User accounts upon receipt of the Initial Set-Up Fee and one (1) Monthly End User Licence Fee paid in advance.
- Following the creation of the End User and Authorised User accounts, the Monthly End User Licence Fee will be payable monthly in advance.
- All Fees are payable by credit card.
- The End User:
- authorises the Licensor to debit their credit card for the Fees; and
- acknowledges that the debit of their credit card may incur surcharges for each payment;
- agrees to keep the Licensor notified of any changes to the credit card being debited; and
- will sign any authorisation form required by the Licensor to facilitate payment of the Fees.
- The Licensor will retain the End User’s credit card details on file. The Licensor will take all reasonable steps to ensure that the credit card details are stored securely.
5. Goods and services tax
- Words defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
- GST inclusive amounts
For the purposes of this Agreement where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
- Consideration is GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
6. Consent to the provision of information to third parties
- The End User acknowledges that its details and the details of its Authorised Users may be provided to third parties in order for the Sales Portal to operate effectively.
- The End User acknowledges that information about them and their Authorised User may be sent between countries to other entities that the Licensor has commercial contracts with. The provision of such information will be under an obligation of confidence.
7. Warranty disclaimer
- To the fullest extent permissible by law, the Sales Portal and the Documentation are provided to the End User without any representations or warranties. The End User agrees to use them at their sole risk.
- Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances, each a Non-Excludable Provision.
- Subject to the Licensor’s obligations under the Non-Excludable Provisions, and to the fullest extent permissible by law, the Licensor expressly disclaims all warranties of any kind with respect to the Sales Portal and the Documentation, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
7.2 Limitation of liability
- Subject to the Licensor’s compliance with the Non-Excludable Provisions and to the fullest extent permissible by law, the Licensor is not liable (whether in contract or tort) for anything the End User does to a third party as a result of using the Sales Portal:
- for any inability to use any third party equipment or access to data;
- for loss or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption of the like regardless of whether the loss is direct or indirectly caused by use of the Sales Portal; or
- for any indirect, incidental, punitive, special, or consequential loss or damage whatsoever, in each case, arising out of the use or inability to use the Sales Portal or Documentation, even if the Licensor has been advised of the possibility of such damages or if such damages are foreseeable.
- Subject to the obligations of the Licensor under the Non-excludable Provisions and to the fullest extent permissible by law, in no event will the Licensor’s liability for all damages exceed the amounts actually paid by the End User to the Licensor for the Licence.
- To the fullest extent permitted by law, the liability of the Licensor for a breach of a Non-Excludable Condition is limited to:
- in the case of the supply of goods:
- replacement of the goods;
- supply of equivalent goods;
- repair of the goods;
- payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- in the case of the provision of services:
- the supplying of the services again; or
- payment of the cost of having the services supplied again.
- in the case of the supply of goods:
- Notwithstanding this clause 7.2 or anything else contained in this Agreement, neither party’s liability for death or personal injury resulting from its own negligence shall be limited.
The End User indemnifies, defends and holds harmless the Licensor in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
- any breach of this Agreement;
- the End User’s negligent acts or omissions; or
- use of the Sales Portal, including any third party claims made in connection with, or arising out of, the End User’s use of the Sales Portal and Documentation.
8.1 Termination by the Licensor
The Licensor can terminate this Agreement without notice if:
- it no longer has the right to provide the Sales Portal or Documentation to the End User for any reason whatsoever;
- the End User commits a breach of any of the material terms and conditions of this Agreement; or
- the End User suffers an Insolvency Event.
8.2 Termination for non-payment
The Licensor may terminate this Licence at any time during the Term for non-payment if the Monthly End User Licence Fee is not paid within fourteen (14) days of the date of payment.
8.3 Termination by End User
The End User may terminate this Agreement by providing sixty (60) days written notice of termination.
- For all correspondence related to this Agreement, please contact the Licensor on:
- email: firstname.lastname@example.org or
- telephone: 07 32780301
- If required, the Licensor will contact the End User via the contact details the End User provided when purchasing the Licence. If the Licensor has multiple contact details for the End User, the Licensor will contact the End User using the most recent contact details on file.
10. Miscellaneous provisions
The Licensor may assign this Agreement by notifying the End User of the Assignment. The End User cannot assign the terms and conditions contained in this Agreement without the express consent of the Licensor.
This Agreement may be amended or updated by the Licensor from time to time. All amendments or updates to the Agreement will be displayed at www.saleschamp.com.au The End User’s continued use of the Sales Portal and Documentation will indicate acceptance of the revised amendments or updates.
10.3 Entire Agreement
This Agreement contains the entire Agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties.
10.4 Governing law and jurisdiction
The laws of Queensland and Australia govern this Agreement. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
10.5 Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights from the Licensor to the End User.
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.
The non-exercise of or delay in exercising a right of a Party shall not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the Party (or its authorised representative) to be bound by the waiver.
The following clauses survive termination of this Agreement clause 2.3, 7, 10.4 and 10.8 survive termination of this Agreement.