Services and Software License Agreement

Services and Software License Agreement

This Agreement is made on the date specified in Item 1 of the Schedule.

BETWEEN

The Party specified in Item Item 2 of the Schedule (XR Elements)

AND

The Party specified in Item 3 of the Schedule (Customer)

 

RECITALS

 

A. XR Elements is in the business of providing the Services, which includes the licensing the Software.

B. The Customer has agreed engage XR Elements to:

1. undertake and provide the Services to the Customer; and
2. license the Software to the Customer,

     on the terms of this Agreement.

C. XR Elements has agreed to:

• undertake and provide the Services to the Centre to the Customer; and
• license the Software to the Customer

     on the terms of this Agreement.

 

THE PARTIES AGREE AS FOLLOWS:

 

1. Definitions

     In this Agreement, unless the context otherwise requires:

• “Agreement” means this Services and Licence Agreement, and any other agreement in writing expressed to be supplemental to it;
• “Commencement Date” means the date specified in Item 1 of the Schedule;
• “Confidential Information” means all information which will pass from the Disclosing Party to the Receiving party relating to this Agreement including but not limited to the Intellectual Property, trade secrets, knowhow, formulae, drawings, designs, devices, models, software, source codes, digital data, electronic data, financial and management plans and information, business and marketing plans and projections, arrangements and agreements with third parties, customer information, supplier information, customer lists, supplier lists, price lists, product lines and product identity and branding, and any other information which the Disclosing Party specifies in writing as being confidential, or which by its nature and by the circumstances of its disclosure is, or could reasonably be expected to be regarded as confidential to the Disclosing Party;
• “Costs” means any liability, cost, expense or fee incurred by one party as a result of the breach by the other party of any clause of this Agreement;
• “Disclosing Party” means the party that is disclosing Confidential Information;
• “Event of Default” means, in relation to a party, the occurrence of any one or more of the following events or circumstances;
  • the party fails to comply with any of its obligations under this Agreement; or
  • an Insolvency Event occurs in relation to the party;
• “Fees” means the amounts specified in Annexure 2 of this Agreement, which are payable by the Customer to XR Elements for the provision of the Services under this Agreement, in the manner and at the time or times specified in Annexure 2;
• “Financial Year” means the period from 1 July to 30 June each year, or such different annual period as the parties agree in writing from time to time.
• “Force Majeure Event” means an unforeseeable event or circumstance beyond the reasonable control of a party, and includes but is not limited to:
  • an act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion;
  • strikes, lockouts or other industrial action;
  • war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion; and
  • pandemic, epidemic and any government imposed restrictions and lockdowns resulting from same;
• “Further Term” means the period specified in Item 5 of the Schedule;
• “Insolvency Event” means:
  • a receiver, manager, receiver and manager, trustee, administrator, controller or similar officer is appointed in respect of a party, or any asset of a party;
  • a liquidator or provisional liquidator is appointed in respect of a party;
  • an application (not being an application which is withdrawn or dismissed within 21 days) is made to a court for an order, or an order is made, or a meeting is convened, or a resolution is passed, for the purpose of appointing a person referred to in paragraph (i) and (ii), or winding up of a party or proposing or implementing a scheme of arrangement;
  • an event or conduct occurs which would enable a court to grant a petition for the winding up of a party, or an order is made for the winding of a party; or
  • a party becomes, or admits in writing that it is, is declared to be, or is deemed under any applicable law to be insolvent or unable to pay its debts from its own money as and when they fall due;
• “Intellectual Property” includes, but is not limited to the following:
  • all existing and future trade marks (whether registered or unregistered), trade names, business names, company names, domain names, designs (whether registered or not), patents, copyright, know how, confidential information, trade secrets, inventions and improvements; and
  • programs, data, source codes, electronic and digital information which is owned or licensed by XR Elements; and
  • insignias, logos, livery, style, décor and colour schemes.
• “Interest” means the rate of ten (10%) percent per annum and which is payable by one party to the other party on any amount which becomes overdue under this Agreement from the date the amount is due up to and including the date that it is paid;
• “Month” means a calendar month;
• “Receiving Party” means the party that is receiving Confidential Information;
• “Services” means:
  • the training, software support, consultancy and other services specified in Annexure 1 of this Agreement; and
  • the licensing of, and provision of access to the Software specified in Annexure 1, on the terms of this Agreement and the Software Licence Terms;
• “Services Product” means any Intellectual Property, document or thing of whatever nature, whether in hard copy, soft copy, electronic or digital format which is derived or created by XR Elements, or any third party engaged by XR Elements to assist it in undertaking and performing the Services under this Agreement;
• “Software” means the software licensed by the Customer from XR Elements pursuant to this Agreement, which software is specified in Annexure 1;
• “Software Licence Terms” mean the terms and conditions on which any Software is licensed by XR Elements to the Customer, which are specified in Annexure 3 of this Agreement, and which form part of the terms and conditions of this Agreement. For the avoidance of doubt, a breach of a Software Licence Term is a breach of this Agreement;
• “Term” means the period specified in Item 4 of the Schedule.

2. Interpretation
   • A reference to this Agreement includes the recitals and any schedules, annexures and exhibits to this Agreement and where amended means this Agreement as so amended.
   • Unless the context otherwise requires a word which denotes:
     • the singular includes the plural and vice versa;
     • any gender includes the other genders; and
     • a person includes an individual, a body corporate and a government.
   • Unless the context otherwise requires a reference to:
     • a legislation includes any regulation or instrument made under it and where amended re-enacted or replaced means that amended re-enacted or replacement legislation;
     • any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced;
     • a clause, schedule, annexure or exhibit is a reference to a clause of, annexure to, schedule to or exhibit to this Agreement;
     • a group of persons includes any one or more of them;
     • any thing or amount is a reference to the whole and each part of it;
     • “$” or “dollars” is a reference to the lawful currency of Australia;
   • an obligation which binds two or more persons or parties under this Agreement, binds them jointly and each of them individually; and
   • headings and the table of contents appear for convenience only and do not form part of this Agreement.
3. Agreement to Provide Services
   • The Customer engages XR Elements to:
     • undertake and provide the Services to the Customer, in the manner specified in Annexure 1, and otherwise on the terms of this Agreement; and
     • license the Software to the Customer on the terms of this Agreement and the Software Licence Terms.
   • XR Elements agrees to:
     • undertake and provide the Services to the Customer, in the manner specified in Annexure 1, and otherwise on the terms of this Agreement; and
     • license the Software to the Customer on the terms of this Agreement and the Software Licence Terms.
   • The Customer acknowledges and agrees that XR Elements may, in its absolute discretion, suspend the provision of any Services to the Customer where any Fees relating to the provision of Services already rendered or provided remain overdue or unpaid.

 

4. Term and Further Term
   • This Agreement commences on the Commencement Date and continues for the Term, unless either party terminates this Agreement earlier in accordance with its terms.
   • The Customer has an option to renew this Agreement for the Further Term, and XR Elements must renew this Agreement for that Further Term if:
     • there is no unremedied breach of this Agreement by the Customer of which XR Elements has given the Customer written notice at the time the Customer requests renewal of this Agreement; and
     • the Customer has not persistently committed breaches of this Agreement of which XR Elements has given written notice to the Customer during the Term, and
     • the Customer has exercised the option for renewal in writing not more than 6 months and not less than 3 months before the end of the term.

5. Fees
   • In consideration of XR Elements undertaking and providing the Services to the Customer pursuant to this Agreement, the Customer agrees to pay to XR Elements the Fees at the time and in the manner specified in Annexure 2 of this Agreement, or as otherwise agreed in writing between the Customer and XR Elements in writing from time to time.
   • The Customer agrees to sign a direct debit form in favour of XR Elements to allow it to direct debit the Fees due to it on or after the due date for their payment.
   • If the Customer is late in paying XR Elements a Fee as required under clause 5.1, XR Elements may charge the Customer Interest on any amount of the Fee which is overdue, from the day that the amount was due up to an including the day it is paid.
   • The Customer acknowledges and agrees that XR Elements may, in its absolute discretion, suspend the provision of any Services to the Customer where any Fees relating to the provision of Services already rendered or provided remain overdue or unpaid. If XR Elements elects to do this, the Customer acknowledges and agrees that XR Elements is not responsible for any losses, damages, costs, expenses, loss of profits, loss of business opportunity or consequential losses and damages suffered or incurred by the Customer.
6. XR Element’s Obligations

     XR Elements agrees to:

• undertake and provide the Services in a proper, professional and diligent manner using all due care, skill and attention, in accordance with accepted professional and business practices;
• comply with the Customer’s reasonable directions from time to time in undertaking and providing the whole or any part of the Services;
• undertake and provide the Services in a manner that is consistent and compliant with all Australian laws, meets all of the requirements of any government agency or authority and is compliant with any code or codes of conduct or practice applicable to the performance by XR Elements of its obligations under this Agreement;
• keep full and accurate and complete records and accounts of all financial and other transactions in relation to all Services performed under this Agreement;
• issue an invoice to the Customer for the Fees payable by the Customer to XR Elements under this Agreement.

7. XR Element’s Warranties

     XR Elements represents and warrants to the Customer that it:

• has the lawful right or authority to execute this Agreement and to perform its obligations under this Agreement;
• will be available to perform the Services in a timely manner and to meet any deadlines required under this Agreement from time to time;
• holds all licenses, permits, authorizations or consents to undertake and provide the Services; and
• will at all times act in a lawful and ethical manner in the performance of the Services under this Agreement.

8. The Customer’s Obligations

     The Customer agrees that it will:

• comply with the terms of this Agreement and the Software Licence Terms;
• provide XR Elements with the necessary hard copy, soft copy, electronic and digital documents and information it requires to undertake and provide the Services under this Agreement;
• provide XR Elements with all reasonable assistance and information required by XR Elements to undertake and complete the Services; and
• keep accurate and complete financial and other records of the Services provided to it by XR Elements;
• pay to XR Elements the Fees pursuant to Annexure 2 of this Agreement; and
• take all reasonable steps to safeguard XR Elements’ Intellectual Property. Without limiting the foregoing, the Customer must inform XR Elements as soon as possible after learning of any infringement or any potential infringement of any of XR Elements’ Intellectual Property.

9. The Customer’s Warranties

     The Customer represents and warrants to XR Elements that:

• has the lawful right or authority to execute this Agreement and to perform its obligations under this Agreement;
• holds all licenses, permits, authorizations or consents in relation to the Centre;
• will at all times act in a lawful and ethical manner in its dealing with XR Elements under this Agreement; and
• will at all times deal with XR Elements in good faith.

10. Intellectual Property
    • XR Elements and the Customer acknowledge and agree that:
      • all Intellectual Property in the Services and Software belongs to, and is owned absolutely by XR Elements;
      • all changes, enhancements and modifications made to the Intellectual Property automatically vest in, and belong absolutely to XR Elements upon their creation;
      • the Intellectual Property in any and all Services Products derived from or created by XR Elements, or any third party engaged by XR Elements to assist it in providing the Services under this Agreement, automatically vest in, and belong absolutely to XR Elements upon their creation; and
      • this clause 10.1 operates to automatically transfer (where required) from the Customer to XR Elements all Intellectual Property in any and all Services Products derived from or created by XR Elements or any third party engaged by XR Elements to assist it in providing the Services under this Agreement.
    • The Customer must not alter the Intellectual Property without the prior written consent of XR Elements.
    • The Customer must not use the Intellectual Property after this Agreement comes to an end for whatever reason.
11. Relationship of the Parties

     The parties acknowledge and agree that:

• XR Elements is an independent contractor and is not a partner, agent or employee of the Customer;
• no party has the power or authority to obligate or bind the other party to any matter or thing; and
• all payments made by the Customer to XR Elements under this Agreement are payments made to an independent contractor and are not payments of any other nature.

12. Confidentiality
    • XR Elements and the Customer intend to exchange Confidential Information relating to this Agreement.
    • The Receiving Party covenants and agrees that it will:
      • not disclose the Confidential Information, or permit it to be disclosed, to any persons unless it is required to do so by law, and then only after giving the Disclosing Party prior written notice;
      • limit access of the Confidential Information to those members of Staff reasonably requiring the Confidential Information on the proviso that the confidentiality of the Confidential Information is similarly respected by those members of Staff in the same manner as provided in this Agreement;
      • not use Confidential Information in any way that would be harmful to the best interests of the Disclosing Party;
      • not use Confidential Information in any way other than as contemplated by this Agreement, without the prior written permission of the Disclosing Party; and
      • not copy, in whole or in part, any Confidential Information without the prior written permission of the Disclosing Party.
    • Confidential Information excludes, or as the case requires, ceases to include information which is, or becomes:
      • at the time of its first disclosure to the Receiving Party, already in the possession of the Receiving Party without the Receiving Party being in breach of this Agreement;
      • after the date of its disclosure to the Receiving Party, available to the public from sources other than the Receiving Party; or
      • after the date of its disclosure to the Receiving Party, available to the Receiving Party from a third party having no obligations of confidentiality to the Disclosing Party.
    • Upon the written request of the Disclosing Party, the Receiving Party must return to the Disclosing Party any documents or material, whether in hard copy, soft copy, electronic or digital format, originating from the Disclosing Party which contains Confidential Information and must not keep any copies in any form, other than as may reasonably be required by the Receiving Party to properly perform its obligations under this Agreement.
    • For the avoidance of doubt, XR Elements agrees to:
      • keep confidential all information in relation to a third party which is provided or disclosed to XR Elements by the Customer as part of XR Elements performing the Services under this Agreement; and
      • comply with the terms of any confidentiality or non-disclosure agreement entered into between XR Elements and a third party associated with the Customer under this Agreement.

13. Dispute Resolution

     A party must not start court proceedings about a dispute arising        out of this Agreement unless it first complies with this clause 13.

• A party claiming that a dispute has arisen (“Claimant”) must give a notice of dispute (“Dispute Notice”) to the other party (“Respondent”) specifying:
  • the nature and details of the dispute; and
  • the action which the Claimant requires the Respondent to undertake or perform in order to resolve the dispute.
• The parties must use their best endeavours and negotiate in good faith to resolve the dispute within one (1) Month of the date of the Dispute Notice, or such further period agreed to in writing by them.
• If the parties cannot resolve the dispute within the time period specified in clause 13.2, then the parties must immediately submit the dispute for mediation by the President for the time being of the Law Institute of Victoria.
• At any mediation, each of the parties may be represented by a duly qualified legal practitioner.
• Subject to any determination to the contrary by the mediator, the cost of the mediation and the mediator must be born equally between the parties.

14. Default and Termination
    • If an Event of Default, other than an Insolvency Event, occurs in relation to a party, the non-defaulting party may give a notice (“Default Notice”) to the defaulting party specifying the Event of Default and requiring the defaulting party to remedy the default within 14 days after the Default Notice is given to the defaulting party.
    • If the Event of Default is not capable of being remedied, or the defaulting party:
      • receives a Default Notice and does not comply with that notice to the reasonable satisfaction of the non-defaulting party within the period specified in clause 14.1;
      • is the subject of an Insolvency Event,

then the non-defaulting party, without limiting its other rights and remedies, may terminate this Agreement by giving to the defaulting party written notice with immediate effect.

• XR Elements and the Customer acknowledge that:
  • the non-defaulting party may require the defaulting party to pay Interest (if applicable) and Costs in relation to any Event of Default; and
  • if the non-defaulting party requires the defaulting party to pay Interest and Costs, then the non-defaulting party must specify the amount of Interest and Costs payable by the defaulting party in the Notice of Default; and
  • a Notice of Default is deemed not to have been complied with under this clause 14 unless the defaulting party has also paid to the non-defaulting party any Interest and Costs in full and in cleared funds.
• Upon termination of this Agreement:
  • XR Elements must immediately cease performing the Services, or hold itself out as being a contractor or in any other way associated with the Customer;
  • the Customer’s right to use the Software immediately terminates and the Customer must immediately cease using the Software, and if applicable:
• immediately return the Software to XR Elements; and
• delete and destroy the Software from all its hardware on which the Software is installed, upon
  • the Customer’s right to use any Intellectual Property immediately terminates and the Customer must cease using any Intellectual Property;
  • a party’s right to use the other party’s Confidential Information immediately terminates and the parties must respectively cease using it; and
  • the Customer must immediately deliver to XR Elements all property and documents, whether in hard copy, soft copy, electronic or digital format, which belong to XR Elements or which contain or form part of the Intellectual Property or form part of XR Elements’ Confidential Information.

15. Indemnity

The Customer indemnifies and keeps XR Elements indemnified against all Costs, liabilities, claims, demands, causes of action, losses, damages and expenses of whatever nature, including legal fees, which any person may make or seek against, or seek to recover from XR Elements, or which XR Elements suffers or incurs as a result of or in connection with or incidental to:

• a breach of any provision of this Agreement; and
• any unauthorized act, default, dishonesty, negligent act or omission or fraudulent conduct by the Customer or any of its staff; and

16. Exclusion of Liability

The Customer acknowledges and agrees as follows:

• XR Elements is not liable
• To the maximum extent permitted by law, XR Elements excludes all liability arising from or in connection with this Agreement, whether in contract, tort, negligence, statute, equity or otherwise.
• XR Elements is not liable to the Customer for any Costs, liabilities, claims, demands, causes of action, direct, indirect and consequential losses, damages and expenses of whatever nature, including but not limited to legal fees and loss of profits, arising from or in connection with:
  • the Services provided by XR Elements to the Customer;
  • the use of the Software by the Customer; and
  • any fault, error, interruption, delay, omission or failure of the Software, irrespective of whether it was, or was not in XR Element’s control); and
  • the Customer’s temporary inability to use the Software because of any required upgrade or maintenance of the Software required to be undertaken by XR Elements or any other third party which is authorized to upgrade or maintain the Software.

17. Time is of the Essence
    • Time is of the essence with respect to XR Elements and the Customer performing their respective obligations under this Agreement.
    • XR Elements must advise the Customer, in writing, immediately when XR Elements foresees any delay in undertaking and providing any of the Services by the due date required (if any), or in a timely manner.
    • The Customer must advise XR Elements, in writing, immediately when the Customer foresees any delay in undertaking any of its obligations under this Agreement by the due date required (if any), or in a timely manner.

 

18. Force Majeure
    • A party is not in breach of this Agreement if it fails to perform any obligation because of a Force Majeure Event.
    • A party prevented from performing any obligation under this Agreement must:
      • notify the other party as soon as practicable in writing of the obligation it cannot perform and the Force Majeure Event which is preventing the party from performing that obligation; and
      • continue to perform all unaffected obligations under this Agreement; and
      • use reasonable endeavours to continue to perform the affected obligations; and
      • if possible, use reasonable endeavours to overcome the effects of the Force Majeure Event; and
      • notify the other party as soon as the Force Majeure Event has ended.

19. Notices

Notices under this Agreement may be delivered by prepaid postage, by hand, by facsimile transmission or by email to each of the parties at the address set out in the Schedule or such other address as either party may specify by notice in writing to the other.  Notices will be deemed to be given:

• Two (2) days after deposit in the mail with postage prepaid;
• When delivered by hand;
• If sent by facsimile transmission, on the date and time on which a successful transmission is noted by the sender’s facsimile machine; or
• If sent by email, on the date and time a successful transmission is noted in the sender’s “sent” email folder.

20. Assignment

The Customer and XR Elements must not assign or transfer the whole or any part of this Agreement or any of its obligations under Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld.

21. Whole Agreement

This Agreement constitutes the sole and entire agreement between the parties and no term, condition, warranty, representation or guarantee shall be deemed to be implied in this Agreement or to arise between the parties by way of collateral or other agreement by reason of any promise, representation, warranty or undertaking given or made by any party to another party on or prior to the execution of this Agreement.

22. Variation of Agreement

No variation, modification or waiver of any provision of this Agreement or any consents to any departure by any party from this Agreement shall be of any force or effect unless the same is in writing and signed by the parties and shall be effective only to the extent for which it was given.

23. Severance of Invalid Provisions

If any provision of this Agreement is construed to be invalid or not enforceable, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provision shall be, and continue to be, valid and enforceable in accordance with the terms of this Agreement.

24. No Waiver

A failure of a party at any time to require full or partial performance of any obligations under this Agreement will not affect in any way the rights of that party to require that performance subsequently.  Any waiver of a breach of this Agreement must be in writing and signed and dated by the party granting the waiver, and will be effective only to the extent specified in that waiver.

25. Governing Law

This Agreement shall be governed by and construed in accordance with the laws from time to time in the State of Victoria. 

 

Schedule

Item 1:	Date
Item 2:	XR Elements	XR ELEMENTS PTY LTD ACN 145 815 489 of Level 14, 333 Collins Street  Melbourne  VIC  3000
Item 3:	Customer:	Name/ACN of [Insert Address of Customer]
Item 4:	Term:	Three (3) years commencing on the Commencement Date
Item 5:	Further Term:	One further term of three (3) years

 

Annexure 1

SERVICES

 

 

 

 

 

 

 

 

SOFTWARE

 

 

 

 

 

 

 

 

Annexure 2

FEES FOR SERVICES

 

 

 

 

 

 

 

 

FEES FOR SOFTWARE

 

 

 

 

 

 

 

 

Annexure 3

SOFTWARE LICENCE TERMS

The Licensee hereby agrees to abide and undertake (as the case may be) the following obligations in relation the Software:

Positive Obligations

1. To comply with the terms of this Agreement;
2. To comply with Microsoft’s terms of use that can be found here: https://powerplatform.microsoft.com/en-au/business-applications/legal/
3. To pay the License Fee to the Licensor on the due date for its payment pursuant to and in accordance with this Agreement, including any software licence Fee based on the number of users authorised by the Customer to use the Software;
4. To use the Software solely for its intended purpose and in accordance with any and all directions or specifications provided by XR Elements to the Customer;
5. To supervise and ensure that the use of the Software by the Customer’s authorised users, is in accordance with this Agreement;
6. To ensure the Customer’s employees, sub-contractors and other agents who are authorised to use the Software:
   • are made aware of the relevant terms of this Agreement; and
   • execute such undertakings reasonably required by XR Elements to protect its rights under this Agreement.

Negative Obligations

7. Not to copy the Software;
8. Not install the Software on any hardware or storage devices which is not owned or controlled by the Customer;
9. Not to, reproduce, reverse engineer, decompile, disassemble translate, adapt, vary or modify the Software in any way;
10. Not to remove, alter or obscure any proprietary notices, labels or marks from or within the Software;
11. Not to provide, market, sell, distribute or otherwise make available the Software or any part of it to any person, business or entity who is not a Party to this contract;
12. Not to rent, lease, license or grant any similar rights to the Software to any person, business or entity who is not a Party to this contract;
13. Not to use of the Software in an improper or illegal way or in a way that would detrimentally affect the interests of XR Elements; and
14. Not to introduce any data, files, codes or any other electronic or digital information which is designed to affix and/or bury itself into any other software and hardware and cause malfunctions, errors, corruption or destruction of data, software and/or hardware, which includes but is not limited to worms, cancelbots, trojan horses, phishers, bombs, trapdoors, spyware, harmful, contaminants or other harmful applications.

 

EXECUTED AS AN AGREEMENT

 

	EXECUTED by XR ELEMENTS PTY LTD ACN 145 815 489 pursuant to section 127(1) of the Corporations Act 2001 (Cth):                   ……………………………………… Director Full Name: Usual Address:		) ) )                             ……………………………………… Director/Secretary Full Name: Usual Address:
	EXECUTED by [INSERT NAME OF CUSTOMER] PTY LTD ACN ### ### ### pursuant to section 127(1) of the Corporations Act 2001 (Cth):                   ……………………………………… Director Full Name: Usual Address:		) )   )                                 ……………………………………… Director Full Name: Usual Address: