EngageRM Software Agreement Terms and Conditions
EngageRM has a standard set of Terms and Conditions that all customers are bound by when using our products and platforms.
When you enter into an Agreement with EngageRM, these Terms and Conditions provide the legal requirements of the use of the products and services we provide.
BACKGROUND
A. EngageRM has developed a number of technology products and provides related IT professional services.
B. The EngageRM products are built on Microsoft Platforms (and other Third Party Platforms), of which the Customer is a subscriber.
C. The Customer wishes to obtain access to and use the EngageRM product specified in Schedule 1 (the “Service”) and / or obtain the Professional Services specified in Schedule 1.
D. EngageRM agrees to provide access to the Service and / or to perform the Professional Services on the terms of this Agreement.
1. AGREEMENT AND TERM
1.1 This “EngageRM Software and Services Agreement” (Agreement) is entered into by EngageRM Pty Ltd (ABN 62 638 463 126) of Level 20 181 William Street, Melbourne, Victoria 3000 Australia (EngageRM) and the entity listed as the “Customer” in the License Agreement Order Form (Customer) provided by EngageRM.
1.2 This Agreement commences when the Order Form is executed by both parties and continues for the Initial Term unless extended in accordance with clause 1.3 or terminated earlier in accordance with its terms.
1.3 This Agreement will automatically extend for a period of 36 months (each such period being an Extension Period) on the expiry of the Initial Term or then current Extension Period unless either party gives the other party written notice that it does not wish to extend the Agreement at least 90 days before the end of the Initial Term or then current Extension Term.
1.4 If Schedule 1 specifies Professional Services only, this Agreement will continue until the earlier of the completion of the Professional Services (as determined by EngageRM acting reasonably) or until the expiry of the Professional Services Term specified in Schedule 1 (if applicable).
1.5 EngageRM may amend this Agreement from time to time on providing 30 days’ notice to the Customer. If the Customer does not agree with any amendments to this Agreement, it must cease using the Service and clause 16 applies.
2. THIRD PARTY SUBSCRIPTION
2.1 In order to use the Service, Customer must have a current subscription to the relevant Microsoft Platform or other Third Party Platform (which subscription will be at Customer’s cost).
2.2 Customer acknowledges that:
a) the Service is a separate service to the Third Party Platform and that the applicable Third Party Provider is responsible for the provision of the Third Party Platform to the Customer;
b) EngageRM is responsible for the Service only, and is not responsible for the Third Party Platform (including any issue which may arise in relation to that product or its availability); and
c) EngageRM may use reasonable endeavours to assist the Customer to resolve any Third Party Platform issue which affects Customer’s use of the Service.
3. PROVISION OF THE SERVICE
3.1 Subject the Customer’s compliance with this Agreement, EngageRM will provide the Customer with access to the Service for the Term in accordance with this Agreement.
3.2 EngageRM will use reasonable commercial endeavours to provide the Service in accordance with the Service Levels.
4. USING THE SERVICE
4.1 To access the Service, EngageRM will provision the Service and will notify the nominated representative of the Customer. The Customer’s Third Party Platform accounts will have immediate access to the Service.
4.2 The Customer acknowledges that all email addresses and passwords attached to any accounts associated with the Customer (Login Details) are confidential. The Customer must ensure that the Service is kept secure from unauthorised access, use or modification, including by:
a) keeping all Login Details secure and confidential; and
b) ensuring that employees, officers, agents, individual contractors and representatives of the Customer who are expressly authorised by EngageRM to use the Service (Permitted Users) keep their own and/or the Customer’s Login Details secure and confidential.
4.3 The Customer must (and must ensure that all Permitted Users) comply with the terms of this Agreement, all Laws applicable to the Use of the Service, user manuals and any reasonable directions issued by EngageRM.
4.4 The Customer must not (and must ensure that its Permitted Users do not):
a) grant any person access to the Service who is not a Permitted User or permit more than the licensed number of Permitted Users to use the Service;
b) interfere with or disrupt the integrity or performance of the Service including by introducing any malicious software or code (such as viruses and malware etc), or otherwise engage in any activity which puts the security or integrity of the Service at risk;
c) reverse engineer, decompile or disassemble or otherwise attempt to derive the source code of the Service or any part thereof;
d) remove any copyright or trade mark notices from the Service or any materials provided or made available to the Customer in connection with this Agreement; or
e) upload any materials to the Service or display any content which is defamatory, obscene, unlawful or which infringes the rights of any person (including privacy rights, Intellectual Property Rights and Moral Rights).
4.5 EngageRM may suspend any or all access to, or use of, the Service if there is an actual, threatened or suspected breach of security, including any unauthorised access or use of any Login Details, the Service or any user account. The Customer acknowledges and agrees that any such suspension of the Service is without any liability to EngageRM.
4.6 The Customer must change its Login Details as soon as it becomes aware of or suspects any unauthorised access to its Service account.
5. SUPPORT
5.1 If any Permitted User experiences any issues accessing the Service, or has any questions in relation to the use of the Service, the Permitted User should contact EngageRM by logging a support request via the EngageRM Customer Support portal: https://support.engagerm.com.
5.2 If the Customer suspects or becomes aware that its account has been accessed without the Customer’s authorisation, it must immediately report the actual or suspected unauthorised access via the EngageRM Customer Support portal.
6. PROFESSIONAL SERVICES
6.1 EngageRM will provide the Professional Services with due care and skill and in accordance with all Laws applicable to the provision of the services.
6.2 The Customer must provide reasonable cooperation, information and resources as requested by EngageRM to provide the Professional Services.
6.3 EngageRM may subcontract the provision of any Professional Services. EngageRM will remain responsible for the provision of the Professional Services and for any act or omission of any subcontractor in breach of this Agreement.
7. PAYMENT AND FEES
7.1 The Customer must pay EngageRM the Fees specified in Schedule 1.
7.2 EngageRM will invoice the Customer as specified in Schedule 1, and the Customer must pay such invoice within 30 days of receipt.
7.3 The Fees are exclusive of any applicable local, regional or federal sales tax, or other taxes or similar, which are the responsibility of the Customer. The invoice will include an additional amount for any such tax based on the regulation of the applicable jurisdiction.
7.4 The Customer is responsible for all costs associated with accessing and using the Service, including all telecommunications access charges, network infrastructure, equipment and other software.
7.5 For each Extension Period, EngageRM may increase each Service Fee component.
7.6 The Customer is responsible for any use of the Service in excess of the total number of licensed users. After the end of each Year of the Term, EngageRM will issue an invoice to the Customer for any such additional usage (based on the unit rates for Fees) and the Customer must pay such invoice within 30 days of receipt.
7.7 Any third-party licensing is outside the control of EngageRM and may be subject to change on a yearly basis.
8. MONITORING, MAINTENANCE AND SUSPENSION
8.1 EngageRM reserves the right at any time to:
a) monitor Customer’s use of the Service to ensure that Customer is complying with the terms of this Agreement;
b) modify any aspect of the Service (including its functionality) without notice, provided that such modification does not disrupt the Service or substantially change the functionality of the Service; or
c) suspend or limit the Customer’s access to the Service if the Customer or any Permitted User is in breach of this Agreement.
8.2 EngageRM will maintain the Service from time to time by releasing updates and may, from time to time, release a new version of the Service. The Customer must accept any such updates or ensure that it is using the latest version of released software.
8.3 EngageRM may suspend access to, and use of, the Service in order to perform Scheduled Maintenance. Where possible, EngageRM will provide the Customer with at least 7 days’ notice of the Scheduled Maintenance and the expected duration of the maintenance.
8.4 The Customer acknowledges and agrees that EngageRM may interrupt or suspend all access to and use of the Service if EngageRM needs to undertake Unscheduled Maintenance or where EngageRM is required to interrupt or suspend access to the Service by law (including where required by any lawful direction of a regulator, court or other authority). Where possible and practicable, EngageRM (or its agent) will provide the Customer with reasonable prior notice of any such interruption or suspension. Where it is not possible or practicable to provide notice to the Customer prior to an interruption or suspension, then notice will be provided as soon as practicable after the occurrence of the interruption or suspension (as the case may be). 8.5 Without limiting clause 13.1, the Customer acknowledges and agrees that any interruption or suspension of the Service for the purposes set out in this clause 8 is without any liability to EngageRM.
8.6 The Customer must participate in and co-operate in good faith with any audit or review that assesses the Customer’s compliance with licence or access rights, including by providing EngageRM or its authorised representatives with such access to the Customer’s facilities, premises, records, books and personnel as is reasonably required for the purposes of the audit, provide that:
a) except where EngageRM reasonably suspects that the Customer is in breach of its licence or access rights, EngageRM will provide no less than 14 days’ notice of the requirement to carry out an audit;
b) where EngageRM uses an authorised representative to conduct the audit, EngageRM will procure that the authorised representative provides a reasonable confidentiality undertaking directly with the Customer in relation to any confidential information of the Customer accessed during the course of the audit; and
c) the audit will be conducted in a way that complies with the Customer’s standard access and security policies and procedures and in a way that, to the extent reasonably possible, minimises any adverse impact on the Customer’s ordinary business operations.
8.7 If the audit reveals any usage beyond the Customer’s permitted licence or access rights:
a) EngageRM will issue an invoice to the Customer for the additional usage and the Customer must pay such invoice within 30 days of receipt; and
b) EngageRM may adjust the Fees for the remainder of the Term to reflect the additional usage.
9. INTELLECTUAL PROPERTY AND DATA
9.1 The Customer acknowledges that EngageRM is the owner or licensee of all Intellectual Property Rights in and to the Service, all content and data contained in or made accessible by EngageRM on the Service, and any other materials provided by or on behalf of EngageRM in connection with this Agreement (EngageRM Material). EngageRM Material expressly excludes Customer Data.
9.2 EngageRM grants the Customer a non-exclusive, non-transferable, revocable licence to access and use EngageRM Material and the Service during the Term, subject to the terms and conditions of this Agreement.
9.3 Except as expressly set out in this Agreement, no other rights or licences in or to the Service or EngageRM Material are granted to the Customer and all such rights are expressly reserved by EngageRM.
9.4 EngageRM acknowledges that all Intellectual Property Rights in or to the Customer Data are owned or licensed by the Customer.
9.5 The Customer acknowledges that:
a) EngageRM does not hold or store Customer Data, and that such Data is held or stored by the relevant Third Party Provider within the relevant Third Party Platform; and
b) EngageRM may access, process, use, modify, reproduce or display Customer Data for the purpose of providing the Service or the Professional Services, and grants EngageRM a non-exclusive, non-transferable, royalty free licence during the Term to do so.
9.6 The Customer warrants that:
a) it has all necessary rights and consents (including consents required under Privacy Laws) to use the Customer Data in connection with the Service and to grant the licence to EngageRM in accordance with clause 9.5; and
b) the Customer Data and its use by EngageRM and in the manner permitted by this Agreement will not breach any laws or the rights of any person (including Intellectual Property Rights and Privacy Laws).
9.7 The Customer is solely responsible for procuring any third party software and materials required by it in order for the Customer to access and use the Service (Third Party Items). The Customer agrees that it is solely liable for any fees and charges in connection with obtaining such Third Party Items and agrees to comply with the terms and conditions imposed by third parties in relation to the Third Party Items.
9.8 The Customer consents to EngageRM collecting diagnostic, technical, usage and related information regarding the use of the Service by the Customer and its Permitted Users, and consents to EngageRM using such information to monitor the Customer’s compliance with this Agreement, to improve the Service and for the internal business purposes of EngageRM (including to update and support the Service).
10. CONFIDENTIALITY
10.1 The Customer agrees to keep the Confidential Information confidential and not use it except as required to use the Service as permitted by this Agreement.
10.2 The Customer may only disclose the Confidential Information:
a) to those Permitted Users who require access to the Confidential Information to make use of the Service as permitted under this Agreement (provided that each Permitted User agrees to comply with clause 10.1 and the other terms of this Agreement);
b) to its professional advisors who are bound by obligations of confidentiality, or
c) if required by applicable law (in which case the Customer must use best endeavours to provide prior written notice to EngageRM so that EngageRM may have an opportunity to contest any such disclosure).
10.3 The obligations in this clause 10 do not apply to information that:
a) is or becomes generally known to the public without breach of any obligation of confidentiality; or
b) was independently developed without use of or access to that information.
10.4 EngageRM will use reasonable efforts in accordance with industry standards to maintain the confidentiality of the Customer Data but provides no warranty that the Service (and, accordingly, the Customer Data) will be secure from unauthorised access or that the integrity of the Customer Data will be maintained. EngageRM is not responsible for any disclosure of Customer Data which occurs via any:
a) breach of this Agreement by any Permitted User, including any unauthorised use of the Customer’s Login Details or breach of clause 4.4; or
b) unauthorised or unlawful use of or access to the Service (including any information technology systems, networks or infrastructure used to provide the Service) by third parties.
10.5 EngageRM may from time to time engage third parties, including third parties located in other countries, to assist EngageRM in the development, maintenance, support and hosting of the Service. The Customer consents to EngageRM disclosing the Customer Data on a confidential basis to such third parties to the extent required so that they can perform these services for EngageRM.
11. PRIVACY
11.1 Each party must comply with all applicable Privacy Laws in respect of all Personal Information disclosed or made accessible by the Customer in connection with the Service or Professional Services.
11.2 Any Personal Information EngageRM accesses or holds in providing the Service or Professional Services will be handled in accordance with EngageRM’s Privacy Policy. By entering into this Agreement, the Customer agrees that it consents to the collection, use and disclosure of Personal Information by EngageRM in accordance with EngageRM’s Privacy Policy (available at EngageRM.com/privacy).
12. EXCLUSION AND LIMITATION OF GUARANTEES
12.1 All express and implied terms, conditions, warranties and guarantees which otherwise might apply to, or arise out of, this Agreement are excluded other than:
a) as expressly stated in this Agreement; and
b) guarantees which by law cannot lawfully be excluded or modified by agreement.
Any additional terms or terms which purport to vary this Agreement and which are included in Customer’s purchase order or other documentation are not accepted and do not form part or otherwise vary this Agreement.
12.2 EngageRM’s liability for a breach of a guarantee described in clause 12.1 will, to the fullest extent permitted by law, be limited to (at EngageRM’s option):
a) supplying the services again; or
b) payment of the cost of having the services supplied again.
12.3 Subject to clauses 12.1 and 12.2, the Service is provided on an “as is” and “as available” basis and the Customer uses the Service at its own risk. The Customer acknowledges that:
a) it has not relied on any statement, representation, warranty, conduct or undertaking made or given by EngageRM or any person on its behalf, other than those set out in clauses 12.1; and
b) it has relied on its own skill and judgment in deciding to use the Service and enter into this Agreement.
12.4 Subject to clauses 12.1 and 12.2, EngageRM provides no warranty or guarantee and makes no representation that the Service:
a) will be uninterrupted, error free, available at all times or otherwise meet or exceed the Service Levels;
b) will be fit for a particular purpose;
c) will be compatible with the Customer’s hardware, software and other systems;
d) will not impact the performance of other services, hardware, software and systems and those of third parties;
e) will be secure from unauthorised access;
f) will not contain any viruses or disruptive code; and
g) will not infringe any person’s rights (including Intellectual Property Rights).
12.5 The Customer is solely responsible for all back-ups of files and Customer Data and EngageRM is not liable to the Customer for any loss of information or data (including the Customer Data).
13. LIABILITY
13.1 Subject to clauses 12.1 and 12.2:
a) to the extent permitted by law, EngageRM is not liable for any loss or damage (including, without limitation, direct, indirect, special or consequential loss, loss of profits, loss of anticipated savings, loss of use, loss of reputation, loss of opportunity, loss of data or business interruption) suffered or incurred by the Customer in connection with this Agreement and the use of the Service (including due to any person’s negligence), except for any liability which cannot be excluded by law (in which case that liability is limited to the minimum allowable by law); and
b) to the extent permitted by law, EngageRM is not liable (including if caused by the negligent act or omission of EngageRM) to the Customer for, and the Customer hereby releases EngageRM from, any loss, damage, expense or claims in connection with the Customer’s use of the Service or for any reliance on information contained on or omitted from the Service.
13.2 Without limiting clause 13.1:
a) EngageRM is not liable for any loss or damage resulting, directly or indirectly, from any technicalerrors, service delivery failures or any scheduled or unscheduled periods of unavailability of the Service or payment systems; and
b) EngageRM does not endorse, or accept any liability for, any opinion or statement made by any other person via the Service.
13.3 To the extent EngageRM is unable to exclude any liability under or in connection with this Agreement (including pursuant to clause 13.1 and 13.2), the maximum cumulative liability of EngageRM for all loss, damage, liability and expense suffered or incurred by the Customer, whether under contract, statute, in tort (including negligence) or otherwise, is limited to the fees paid by Customer under this Agreement.
13.4 The Customer indemnifies EngageRM from and against any liability, loss, damage or expense (including legal fees) EngageRM may suffer or incur in connection with any allegation or claim against EngageRM which is caused by the Customer’s breach of this Agreement, any willful or negligent act or omission by the Customer or any breach of Law by the Customer. 13.5 The Customer’s liability under clause 13.4 will be reduced proportionately to the extent (if any) that the loss or liability was caused or contributed to by the act or omission of EngageRM.
14. WARRANTIES
14.1 EngageRM warrants that:
a) it complies with and operates the Service in accordance with all applicable Laws; and
b) it will retain all records in a form and for the period required by applicable legislation.
14.2 Customer warrants that it complies with the Privacy Laws and all other applicable laws by which the Customer is bound.
15. DISPUTE RESOLUTION
15.1 If a dispute arises between the Customer and EngageRM, either party may give notice to the other party requesting that the dispute be referred for resolution by negotiation between senior representatives of the parties (Representatives). The Representatives must have authority to settle the dispute.
15.2 The Representatives must meet and enter into discussions in good faith to resolve the dispute (in whole or in part) within 21 days of the date on which the notice under clause 15.1 was received (or such later date as the parties may agree). Any agreement reached by the Representatives will be recorded in writing and will be contractually binding on the parties.
15.3 In the event that the dispute is not resolved under clause 15.2, either party is free to take whatever action is deems necessary including the commencement of legal proceedings. 15.4 Nothing in this clause 15 prevents either party from seeking urgent interlocutory relief.
16. TERMINATION
16.1 Either party may terminate this Agreement at any time after the expiry of the Term by giving the other party at least 30 days’ written notice.
16.2 A party may, without prejudice to any other right of action or remedy, terminate this Agreement (in whole or in part) effective immediately by written notice to the other Party (defaulting party) if:
a) the defaulting party has committed a material breach of this Agreement which cannot be remedied;
b) the defaulting party fails to remedy a material breach of this Agreement (which is capable of remedy) within 30 days after receiving written notice to remedy the breach from the other party; or
c) the defaulting party enters or threatens to enter into bankruptcy, liquidation or other type of insolvency, administration, management or receivership, or if the defaulting party ceases or threatens to cease to conduct business to properly give effect to this Agreement.
16.3 On the date nominated in any written notice of termination provided under clauses 16.1 or 16.2:
a) the Customer’s rights to use the Service immediately cease (and the Customer should use its Third Party Platform for the purpose of data access or migration);
b) the Customer must return or permanently delete (at EngageRM’s election) all Confidential Information and EngageRM Material in the Customer’s possession or control; and (c) clauses 9.6, 10, 11, 12, 13, 14 15, 16 and 17, and any other clauses which by their nature survive termination of this Agreement, continue in full force and effect.
16.4 If the Customer terminates this Agreement under clause 1.5 or 16.2, EngageRM will refund any pre-paid fees for the period following the effective date of termination.
17. GENERAL
17.1 This Agreement does not create a partnership, franchise, joint venture, fiduciary or employment relationship between the parties.
17.2 Neither party is liable for any delay or failure to perform its obligations under this Agreement if caused by any event beyond the reasonable control of a party, including any act of God, strikes, industrial disputes, acts of war, terrorism, riots, civil disorder, governmental action, telecommunications failure, equipment failure, traffic congestion, technical malfunction, health epidemics or pandemics or any failure by subcontractors to provide services.
17.3 All notices under this Agreement must be in writing and either delivered personally, by post or by email, and are effective upon receipt.
17.4 EngageRM may assign or novate this Agreement to any other person on written notice to the Customer. The Customer must not assign, novate or sub-licence any of its rights or obligations under this Agreement to any person without EngageRM’s prior written consent. Any purported dealing in breach of this clause is void and of no effect.
17.5 This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, Australia. Each party submits to the exclusive jurisdiction of the courts in Victoria and the courts of appeal from them.
17.6 This Agreement contains the entire understanding between the parties as to the subject matter of this document.
17.7 Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold any consent or approval to be given under this Agreement and is not obliged to give its reasons for doing so.
17.8 A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
17.9 Each party must pay their own costs in relation to the negotiation and preparation of this Agreement.
17.10 In the interpretation of this Agreement no rules of construction shall apply to the disadvantage of one party on the basis that that party put forward or drafted this Agreement or any part thereof.
17.11 This Agreement may be executed in counterparts, such counterparts taken together will be read as one document.
18. INTERPRETATION
18.1 The following terms as used in this Agreement are defined as follows.
a) Business Day means a day which is not a Saturday, Sunday or public holiday in Melbourne Australia.
b) Business Hours means the period between 8.30 am and 5.00 pm on Business Days.
c) Confidential Information means any information disclosed by EngageRM in connection with this Agreement which is designated as confidential or which is, by its nature, confidential, and includes EngageRM Material.
d) Customer Data means any information, data, file or record entered into or uploaded to the Service by or on behalf of the Customer and which is stored or held by Microsoft.
e) Customer Representative means the person listed as the “Customer Representative” in Schedule 1. (f) EngageRM Material is defined in clause 9.1.
f) Fees means the Service Fees and Professional Services Fees.
g) Initial Term has the meaning given in Schedule 1.
i) Intellectual Property Rights means all intellectual property rights including existing and future copyright, rights in designs, trade marks, patents and inventions, whether registered or unregistered, anywhere in the world.
j) Laws means all statutes, regulations, rules of common law and equity.
k) Microsoft Platform means any Microsoft service which is used by the Customer in connection with a Service, including Dynamics 365, Power Platform, Power Apps and Azure services.
l) Moral Rights has the meaning given in the Australian Copyright Act 1968 (Cth). (m) Permitted Users is defined in clause 4.2(b).
n) Personal Information has the meaning given to it in the Privacy Act.
o) Privacy Act means the Australian Privacy Act 1988 (Cth).
p) Privacy Laws means the Privacy Act, the Australian SPAM Act 2003 (Cth) and any other applicable legislation, common law obligations and binding industry codes relating to privacy, by which a party is bound.
q) Professional Services means any development, implementation, consulting or other services specified in Schedule 1.
r) Professional Services Fees means the fees for Professional Services specified in Schedule 1.
s) Scheduled Maintenance is defined in Schedule 2.
t) Service means the EngageRM product specified in Schedule 1.
u) Service Commencement Date is specified in Schedule 1.
v) Service Fees means the fees for the Service specified in Schedule 1.
w) Service Levels means the “Availability” and “Resolution and Response” service levels specified in Schedule 2.
x) Term means the Initial Term and any Extension Period. (y) Third Party Items is defined in clause 9.7.
z) Third Party Platform means any Microsoft Platform or other third party software or software service which is necessary to use the Service and to which the Customer must subscribe or be licensed to use.
aa) Third Party Provider means a third party who provides a Third Party Platform to the Customer.
bb) Unscheduled Maintenance is defined in Schedule 2.
cc) Year means each successive period of 12 months beginning on the Service Commencement Date.
18.2 Unless expressed to the contrary, in this Agreement:
a) “includes” means includes without limitation;
b) a reference to:
i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
iv) a reference to dollars, $ or currency is a reference to Australian currency;
v) a reference to time is a reference to the time in Melbourne, Australia;
vi) this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties.
