MITIMES CUSTOMER LICENCE
Between Mitimes.com Pty Ltd ACN 138 912 179 of Level 5, 63 Pirie Street, Adelaide South Australia 5000 (email: email@example.com) ("Mitimes") and The Party whose details appear in the Lexis Nexis Order Form (“Customer”)
Through Lexis Nexis the Customer wishes to enter into a contract to use the Mitimes web based Time Capture Solution V4 (“the Product”) upon the terms of this Licence.
Interpretations and definitions
“Business Day” is a day other than a Saturday, Sunday or public holiday in South Australia.
“Business Hours” means the hours of 9:00 am to 5:00 pm Australian Central Time on a Business Day.
“Claim” means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, demand, action, proceeding or judgment made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.
“Commencement Date” means the date specified in Item 4 of the Schedule.
“Confidential Information” means any information of a party which is confidential or secret and which pertains to the dealings, transactions, finances or affairs of the party or the customers or clients of that party and which information is not in the public domain other than as a result of a breach by another party of its obligations of confidentiality under this Agreement and includes the Intellectual Property.
“Consequential Losses” means loss of profit, loss of production, loss of use of any plant or facility, business interruption, loss of business opportunity or any other indirect, consequential, special contingent of penal damage or loss.
“Customer Data” means all data originating from the Customer and stored on the Mitimes server.
“Customer Representative” means the Customer’s representative or any replacement appointed in writing by the Customer. At the Commencement Date, the Customer Representative is the person identified in the Lexis Nexis Order Form.
“Documentation” means the operating manual and user instructions in electronic form or otherwise made available to the Customer for the use of the Product.
“Fault” means a defect or fault in the Product in consequence of which it fails materially to conform to the Documentation.
“Force Majeure Event” means any act, event or cause (other than lack of funds) which is beyond the reasonable control of either party, including but not limited to:
- any acts of God including fires, floods, earthquakes, storms and other disturbances caused by the elements;
- strikes, lockouts, riots, explosions, war;
- government actions or omissions, inability through no fault of a party to obtain any licence or permit; or
- any existing domestic or foreign laws, rules, requirements, regulations or directions or the subsequent implementation of such laws, rules, requirements, regulations or directions which deem any act or omission in the performance of this Agreement to be contrary to those laws, rules, requirements, regulations or directions.
“Government Agency” means a government or a governmental, semi‑governmental or judicial entity or similar authority, and includes a self-regulatory organisation established under statute or a stock exchange.
“Intellectual Property” means all intellectual property rights including, without limitation:
- patents, copyright, registered designs, rights in circuit layouts, trade marks, inventions, secret processes, discoveries and improvements and modifications of any kind;
- the right to have confidential information kept confidential; and
- any application or right to apply for registration of any of the above rights
Mitimes’ Representative” means the Mitimes’ representative identified in Item 3 of the Schedule or any replacement appointed in writing by Mitimes.
“Mitimes Time-Capture Solution” has the same meaning as the Product.
“Notice” means written notice and "notify" means notification in writing.
“Personal Information” has the same meaning as it does in the Privacy Act.
“Practice Management System” means the Customer’s practice management system.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Services” means the following support and maintenance services for the Product during Business Hours:
- email, either directly or through the Mitimes Web Application, to provide first line technical support to Users;
- remote Fault investigation and diagnosis (and where possible correction or recommendation for the correction of such Fault) following the reprt of such Fault to Mitimes’ email support facility;
- investigation (but not necessarily diagnosis) of Faults within 2 Business Days of receiving the Customer’s report of such Fault, but time will not be of the essence in this respect; and
- investigation, diagnosis and solution of Faults remotely. If it becomes necessary for Mitimes to perform such work at the Customer’s premises, then at the Customer’s premises, with such work being performed for an additional, reasonable fee.
“Term” as set out in the Lexis Nexis Order Form.
“Third Party Product” means any Product owned by the Customer or a third party, which may be used as part of or in conjunction with the Product.
“User” means each person employed by or engaged by the Customer who uses the Product in a given calendar month for the purposes of the Customer.
Use of Product
During the Term, Mitimes grants the Customer a non‑transferable, non‑exclusive right to use the Product on the terms of this Licence.
The Customer acknowledges and agrees that the use of the Product and the Documentation is restricted to use:
- for the Customer’s internal business purposes only; and
- for the Term of this Licence.
- All copies of the Product, including all intangible and tangible elements and any media on which the Product is recorded, are the property of Mitimes and no title to or ownership of the Product is transferred to the Customer.
- The Customer must notify Mitimes immediately if the Customer becomes aware of any unauthorised use or copying of the whole or part of any of the Product by any person.
- The Customer acknowledges and agrees that it may not grant sub-licences in respect of the Product.
- Mitimes reserves the right to make improvements, substitutions, modifications or enhancements to any part of the Product provided that the functionality and performance of the Product will not as a result be materially affected to the Customer’s detriment.
Performance of Services
During the Term:
- Mitimes will provide the Services].
- The Customer acknowledges and agrees that Mitimes does not warrant that the Services provided will be uninterrupted or error free, nor does Mitimes make any warranty as to the results to be obtained from the Customer’s use of the Product except as set out in this Licence.
- To avoid doubt, provision of the Services does not imply any warranty that Mitimes will be successful in correcting any or all Faults and Mitimes does not accept any liability in this regard.
A party will not be liable for its inability to perform its obligations under this Agreement as a result of a Force Majeure Event. If a Force Majeure Event occurs, the party suffering it will notify the other party of the occurrence and expected duration of that event. The party suffering the Force Majeure Event must use all reasonable endeavours to prevent the Force Majeure Event.
If a Force Majeure Event renders performance of this Agreement impossible for a continuous period of at least 30 days, either party may, by notice to the other, terminate this Agreement.
Mitimes warrants that the Product will conform in all material respects to the Documentation for a period of 90 days from the date the Product is delivered to the Customer or any alternative date agreed in writing with Mitimes (“Warranty Period”). If, within the Warranty Period, the Customer notifies Mitimes in writing of any Fault in the Product and such Fault does not result from the Customer, or anyone acting with the authority of the Customer, having modified the Product or having used it outside the terms of this Agreement or not in accordance with the Documentation, Mitimes will, at its option, do any of the following:
- repair the Product;
- replace the Product; or
- terminate this Agreement immediately by notice in writing to the Customer and refund the Fees paid by the Customer as at the date of termination (less a reasonable sum to be determined by Mitimes in respect of the Customer’s use of the Product to the date of termination) on return of the Product and all copies thereof, provided the Customer provides all information that is reasonably necessary to assist Mitimes in resolving the Fault, including sufficient information to enable Mitimes to re-create the Fault.
- Mitimes does not warrant that the use of the Product will be uninterrupted or error free.
- Mitimes provides no warranty in relation to the compatibility with or the integration of the Product with any Third Party Product. To the maximum extent permitted by law, under no circumstances will Mitimes be liable to the Customer for any damage, loss or injury (including without limitation any loss of profit or revenues, loss of data, business interruption loss, recovery or substitution costs, claims by third parties or other Consequential Losses) arising from or out of the supply or use of or inability to use or integrate, the Product or Documentation or any failure by Mitimes or its suppliers to perform an obligation or observe any of the terms of this Agreement even if Mitimes or its representative has been advised of the possibility of such damage.
- The parties acknowledge that Mitimes has no liability for, nor gives any warranty in relation to, the performance or the maintenance of any Third Party Product used with the Product.
The Customer must nominate a Customer Representative so as to ensure:
- that Users efficiently use the Product for the purposes of recording time and posting it to the Customer’s Practice Management System;
- full assistance is given to Mitimes during installation and implementation; and
- internal training in the use of the Product can be conducted, where necessary.
The Customer must attempt resolution of issues or questions by first resorting to the Customer Representative and the Documentation.
The Customer is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by the Customer to access and use the Product and will ensure that all such equipment and services comply with the technical specifications provided by Mitimes.
Mitimes reserves the right to give such instructions or directions to the Customer concerning access to and use of the Product by Users as Mitimes determines in the interest of efficiency and security.
The Customer must comply with all reasonable directions regarding access to and use of the Product including any procedures imposed by Mitimes to prevent unauthorised access to the Product and must permit Mitimes to verify that the Customer’s use of the Product falls within the terms of this Licence.
The Customer must take all reasonable precautions to ensure the security of access to the Product and must not allow any third party or any person other than a User to access or use the Product without the prior written consent of Mitimes.
Availability of Product and Services
Mitimes will use its best endeavours to:
- maintain the reliability and efficiency of the Product and the Services subject to scheduled down time for maintenance services or other interruptions to Services and subject to unscheduled interruptions due to factors beyond the control of Mitimes including any actions of the Customer or third parties including telecommunications providers;
- the Customer will communicate any difficulties encountered with the Product or the Services to Mitimes as soon as is reasonably practicable following detection;
- the Customer acknowledges that the speed of response from Mitimes in respect of the Services is dependent on the Customer’s internal connection and that performance of the Product and the Services may be affected by such external factors as speed of connection and infrastructure bandwidth from the Customer’s equipment to the Mitimes’ server and the number of Users on the connection;
- Mitimes takes no responsibility for any delay, malfunction, non‑performance or other degradation of the Product or the Services caused by or resulting from any alteration, modifications or amendments to the Product or Services requested by the Customer; and
- in the event of total systems failure resulting in the disruption of service to the internet from the Mitimes’ server, Mitimes will endeavour to repair and reinstate the Services within 24 hours of detection, depending upon the severity of the failure.
Suspension of access
Mitimes may suspend access to the Product or the Services:
- to carry out maintenance services;
- to carry out modifications or updates to the Product;
- to preserve data and integrity;
- in the event of a security breach; or
- if the Mitimes’ server malfunctions.
Mitimes also reserves the right to terminate or suspend access to the Services to the Customer indefinitely and without refund or compensation in the event that the Customer uses the Product or the Services or appears to Mitimes to be intending to use the Product or the Services in a manner reasonably deemed inappropriate by Mitimes or which breaches the terms of this Licence.
Mitimes will not be liable to the Customer or any third party as a result of taking the action referred to in this clause where such action is taken on a view which is formed on a reasonable basis by Mitimes.
Mitimes may in its sole discretion make enhancements, updates or new releases of the Product from time to time in order to enhance or improve the functionality or operation of the Product or comply with legislative requirements.
Use of the Product updates by the Customer will be subject to the same terms and conditions as use of the Product under this Agreement.
The Customer will release, defend and indemnify Mitimes for all Claims arising out of, relating to, or in connection with:
- physical loss of or damage to property of the Customer;
- personal injury, disease, illness or death of any of the Customer’s personnel;
- any act or omission of the Customer in connection with or incidental to this Agreement; and
- any breach of this Agreement by the Customer,
unless such loss or damage is caused by the negligent act or omission or breach of this Agreement by Mitimes.
- Neither party will be liable to the other party for Consequential Losses.
- To the maximum extent permitted by law, Mitimes liability under or in connection with this Agreement will not exceed 100% of the Licence Fee paid by the Customer to Lexis Nexis in the 12 months preceding the date on which the Claim arises.
- The Customer agrees that to the maximum extent permitted by law, in entering into this Agreement, either it did not rely on any representation (whether written or oral) of any kind or of any person other than those expressly set out in this Licence or, if it did rely on any written or oral representations not expressly set out in this Agreement, that it will have no remedy in respect of such representations and (in either case) Mitimes will have no liability otherwise than pursuant to the express terms of this Licence.
If the Customer breaches a term herein and the breach can be remedied, Mitimes may give the Customer written notice to remedy that breach. If the breach is not remedied within the period stipulated in the notice, Mitimes may give the Customer a further notice immediately terminating the Licence to use the Product.
The Licence may also be terminated by:
- either party without cause by giving not less than one clear month’s notice to the other party; or
- mutual agreement between the parties.
Mitimes will not be liable to the Customer for any Claims by the Customer relating to the termination of this Agreement by Mitimes in accordance with this clause.
For the avoidance of doubt, the Licence and Services pursuant to this Agreement will cease on the date this Agreement is terminated. Upon termination of this Agreement in accordance with this clause, the Customer acknowledges that Mitimes may terminate or disconnect the Customer’s use of the Product and Services remotely without giving any further notice to the Customer of the termination or disconnection and the Customer acknowledges and agrees that Mitimes will not be liable for, and releases Mitimes from, any liability, loss, damages or compensation the Customer suffers or incurs from any termination or disconnection pursuant to this clause.
The Customer acknowledges that in the provision of the Services in accordance with this Agreement, Mitimes may be required to collect Personal Information from the Customer and the Users and disclose that Personal Information to a third party.
All Intellectual Property rights in the Product and any other document, work or other matter developed, created, owned or contributed to by Mitimes belongs to Mitimes or its related companies and they own all rights, title and interest in that Intellectual Property.
During the Term and after the termination of this Agreement, the Customer will not use any of Mitimes’ Intellectual Property except as expressly permitted by this Agreement, nor register or use any name or mark similar to or capable of being confused with Mitimes’ name, business name or trade mark.
The Customer must not do or allow any third party to do anything which may infringe, damage or endanger Mitimes’ Intellectual Property.
Upon termination of this Agreement or a demand for delivery, deletion or destruction from Mitimes (whichever occurs earlier), the Customer must:
- deliver to Mitimes or destroy (if demanded by Mitimes) any document, work or matter that falls within this clause and is in the Customer’s possession or under its control; and
- irretrievably erase (if demanded by Mitimes) any document, work or matter that falls within this clause and is in the Customer’s possession or under its control. <
In the event that Mitimes becomes aware of any unauthorised access or disclosure to the Customer data, through the Mitimes’ server, Mitimes shall as soon as reasonably possible and in any event within 2 business days advise the Customer in writing.
Upon request by the Customer made before or within 60 days after the termination of this agreement, Mitimes will make available to the Customer a download file of Customer’s data. Otherwise Mitimes is not obliged to maintain Customer data after 60 days from the termination of this Agreement.
Except as otherwise expressly provided in this Agreement:
- all Confidential Information received by one party from another party must be kept confidential and may only be used by the receiving party for the purpose of performing its obligations under this Licence;
- neither party may make any announcement to any person other than the officers and employees of the party concerning this Licence without the approval of the other party;
- despite the preceding provisions of this clause, a party may disclose Confidential Information: to its professional adviser(s) for the purpose of obtaining advice; or if required by law but, unless prevented by law, that party will notify the other party of the disclosure prior to such disclosure or if prior notice is not possible, then as soon as reasonably possible after that disclosure.
If any dispute, question or difference of opinion concerning or arising out of this Agreement is not settled promptly by the parties by consultation, either party may serve a dispute notice on the other. The dispute notice must state that a dispute has arisen and identify what is disputed.
If the parties do not resolve the dispute within 21 days after the giving of the dispute notice, the parties must jointly appoint a mediator. If the parties fail to agree on the appointment of a mediator within a further 7 days, either party may apply to the President of the Law Society of South Australia or a nominee of the President to appoint a mediator. Once the mediator has accepted the appointment, the parties must comply with the instructions of the mediator.
The mediation will be conducted in accordance with the Institute of Arbitrators & Mediators Australia Mediation & Conciliation Rules.
A party may apply to court for urgent injunctive relief. Otherwise, a party will not commence court proceedings in connection with any dispute under or in relation to this Agreement unless this clause has first been complied with.
Unless otherwise specified, this Licence and the terms of the Lexis Nexis Order Form contains the entire agreement between the parties in respect of the subject matter of this Licence and supersedes any prior agreement or understanding (if any) between the parties in relation to the subject matter of this Licence.
Any amendment to a term of this Licence must be made in writing and executed by the parties.
Mitimes may assign its interest under this Licence at any time.
The Customer may only assign its interest under this Licence with the prior written consent of Mitimes, which must not be unreasonably withheld.
A provision of this Licence must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed.
This Licence will be construed according to the laws of South Australia and the parties submit themselves to the non-exclusive jurisdiction of the Courts of South Australia and any competent appellate courts.
The failure by one party to insist upon strict performance by the other party of any of the terms of this Licence will not be deemed a waiver of any term or of a breach by the other party of any term of this Licence. A waiver of any term of this Agreement by a party must be in writing executed by that party or one of its duly authorised officers.
The parties are independent entities. The parties are not principal and agent, partners, trustee and beneficiary or employer and employee.
Mitimes may subcontract all or any of the Services.
Any notice to be given by one party to the other must:
- be signed by the party giving the notice or by one of its officers or its duly authorised lawyer or agent; and
- must be hand delivered or sent by prepaid post or electronic mail to the address or electronic mail address (as the case may be) set out in this Licence or any other address or electronic mail address that a party notifies to the other party from time to time.
Notice will be deemed sufficiently given:
- in the case of hand delivery, on the date of delivery;
- in the case of pre-paid post two Business Days after being sent; or
- in the case of electronic mail, on the day of transmission provided that the sender can give evidence of transmission and the intended recipient does not give evidence of non-receipt.