Legal
Terms of Service.
These Terms of Service apply to Ordered Products and Services supplied by IronSights Pty Ltd (ACN 673 117 961), where they are expressly incorporated into contracts entered into between you and us.
Important
Key things to know before you order.
These plain-language summaries highlight clauses that materially affect cost, term, and obligations. They do not replace the full Terms below — read the underlying clauses for the binding wording. If you would like to discuss any of these before entering an Agreement, please contact us.
Clause 2.2
Automatic monthly renewals
Each Agreement automatically renews for consecutive one-month Renewal Terms unless either party gives at least 30 days’ prior written notice before the end of the Initial Term or current Renewal Term.
Clause 15.5
Early termination fees
If you terminate before the end of the Initial Term or current Renewal Term — other than due to our breach or a Force Majeure Event — you must pay the early termination fees specified in the Order or Service Schedule.
Clause 11.2
CPI fee increases
We may increase the Fees by CPI once every 12 months on and from the anniversary of the Commencement Date.
Clauses 2 & 15
Notice periods
30 days’ written notice to terminate at the end of a Term; 60 days’ notice if we lose a critical third-party supplier; 14 days to remedy a remediable breach.
Clause 19
Privacy obligations
We comply with the Privacy Act 1988 (Cth) and all applicable Data Protection Laws, with a defined data incident response, mandatory notifications, and 24/7 security contacts.
Clause 12
Limitation of liability
Indirect, consequential, and lost-profit losses are excluded. Total aggregate liability is capped at the Fees paid and payable in the 12 months prior to the last breach, unless an Order specifies otherwise.
We are happy to consider any reasonable amendments you may wish to make to the documents that comprise an Agreement before you enter into it. If you wish to propose any such amendments, please contact us before entering the relevant Agreement.
Our Agreements with you
These Terms of Service (Terms of Service) apply to Ordered Products and Services supplied by us, where these Terms of Service are expressly incorporated into contracts entered into by you and us in respect of such products or services. Each such contract is referred to in these Terms of Service as an Agreement.
An Agreement is entered into by you and us each time you submit an Order to us. Each Agreement with you comprises of:
these Terms of Service;
the applicable Order(s) (including any schedules, addendums or annexures that were attached to the Order or included by way of hyperlink in the Order, by us); and
the applicable Service Schedule/s.
To the extent of any inconsistency between any of the documents listed in clause 1.2, the document listed first shall prevail, except where a document expressly specifies otherwise.
We have no obligation to supply any products or services under an Agreement other than as expressly required by the applicable Order.
Unless otherwise agreed in writing by you and us:
we may modify these Terms of Service;
we may modify any Service Schedule;
the modified versions will only apply to Agreements that we subsequently enter into with you; and
we will provide you with a copy of the modified versions or upload them to our website at https://www.ironsights.com.au/terms
It is your responsibility to ensure that you have read and understood them before submitting any Order.
Term
Each Agreement will commence on the Commencement Date specified in the Order, or if the Order does not specify a Commencement Date, the Agreement will commence on the date we receive the Order.
If a contract term, initial term or minimum period is specified in an Order (each, an Initial Term), upon expiry of the Initial Term, the Agreement will automatically continue for subsequent consecutive one-month periods (each such period, a Renewal Term), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least thirty (30) days prior to the expiry of the Initial Term or the then current Renewal Term (as applicable) (time being of the essence), in which case if such notice is provided, the Agreement will terminate at the end of the Initial Term or the then current Renewal Term (as applicable).
If there is no Initial Term, the Agreement will continue from the Commencement Date until the Ordered Products have been delivered in full and the Ordered Services have been supplied in full, and thereafter until either party terminates the Agreement on thirty (30) days’ prior written notice to the other party.
Supply of Ordered Products and Services
We will supply, and/or procure the supply of, each product and/or service specified in an Order (respectively, each an Ordered Product or Ordered Service and collectively, Ordered Products and Services) to you materially in accordance with any Specifications.
You must obtain (and where applicable, provide to us) all necessary:
cooperation, permissions, authorisations, assistance and consents (including all relevant End User and other consents and authorisations); and
access to such information (including account logins), Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises,
as reasonably required by us to supply and/or procure the supply of the Ordered Products and Services to you. Where required by us, you must also arrange safe and timely access to Your Premises for our Personnel and Third Party Providers to Provision, install, supply, deliver, support and maintain applicable Ordered Products and Services. Support and maintenance are not within the scope of an Agreement unless the applicable Order expressly states that they will be provided.
Performance and availability of Ordered Products and Services
We warrant that all Ordered Products and Services will be supplied by us materially in accordance with the Specifications.
We do not warrant that any Ordered Products and Services will be:
uninterrupted or error-free, free from fault or external intrusion; or
suitable for or will meet your requirements,
unless such warranties are expressly set out in an Order or Service Schedule or cannot be excluded under the relevant non-excludable Applicable Law.
If there are Service Levels specified in an Order or Service Schedule, we will use our best endeavours to ensure that the applicable Ordered Services comply with those Service Levels.
We may vary the underlying technology used to supply Ordered Services at any time or from time to time, provided that the variation does not have any adverse effect on the Ordered Services.
Your Equipment and Our Equipment
An Agreement does not transfer or assign title to Your Equipment to us.
An Agreement does not transfer or assign title to Our Equipment to you, except to the extent that an Order or any applicable Service Schedule expressly provides otherwise.
You must not, except as authorised in writing by us, grant or permit the grant or existence of any Security Interest in Our Equipment.
You must promptly notify us if any of Your Equipment in our possession or control becomes subject to any Security Interest or Purchase Money Security Interest (as defined under the PPSA). You must indemnify us from and against all and any loss and damage incurred by us caused by any such Security Interest, the repossession of Your Equipment and any other action taken by any person in respect of Your Equipment that is a secured party.
Your Data
Data in any form entered into, uploaded into or generated from Ordered Products and Services (Your Data) is, as between you and us, owned solely by you and an Agreement does not transfer any IPR in Your Data to us.
We will comply with all applicable Data Protection Laws in respect of Your Data. We will not use Your Data other than to:
perform our obligations under a relevant Agreement; and
comply with our legal obligations.
You must ensure that:
you are fully entitled (and where applicable, licensed) to disclose to us all of Your Data that is entered into, uploaded or generated from Your Equipment and/or any Ordered Products and Services;
you only provide us with Your Data or access to it that we require to perform the Ordered Services;
all Personal Information in Your Data is accurate, up-to-date and complete;
you have obtained all necessary consents required for us, our Personnel and Third Party Providers to collect, use, disclose and process Your Data in accordance with the relevant Agreement; and
you will discharge all notifiable data breach obligations under and in accordance with Applicable Law in respect of Your Data, including in respect of any End User’s Personal Information that is jointly held by you and us.
Intellectual Property Rights
As between you and us, we own all IPR in:
all Ordered Products (except to the extent that the Ordered Products are provided to you by us on behalf of a Third Party Provider or in our capacity as a distributor, reseller or channel partner under an agreement that we have with any third party, in which case the IPR in such Ordered Products is owned by the relevant Third Party Provider);
all Ordered Services (including any software, Source Code, Object Code, databases and database structures that are incorporated into or supplied in connection with the Ordered Products and Services), except to the extent that the Ordered Services are provided to you by us on behalf of a Third Party Provider or in our capacity as a distributor, reseller or channel partner under an agreement that we have with any third party, in which case the IPR in such Ordered Services is owned by the relevant Third Party Provider); and
all Output (including any data except to the extent that it comprises Your Data) made available in or generated via, the Ordered Products and Services,
(collectively, Our IPR).
You must not represent that you own any of Our IPR.
You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute Our IPR and you must not do or authorise the commission of any act that would or might invalidate or be inconsistent with our (or our licensors’) ownership of Our IPR.
You hereby assign to us all and any IPR in all and any comments in connection with Ordered Products and Services and any requests for new features, that you and/or your employees may make or suggest regarding them (each, an Improvement Suggestion). Each such comment and Improvement Suggestion becomes our sole and exclusive property. This assignment is effective when you or your employees make the comment or disclose the Improvement Suggestion to us including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your employees an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any such Improvement Suggestions by us and by any third parties who we authorise to operate or modify Ordered Products and Services.
New Versions, New Functionality and New Modules of the Software
You agree and acknowledge that you are not entitled to receive, and that we are not obligated to supply, any new modules, functionality versions of any Software which from time to time is marketed by us as a new module, new functionality or new version of the Software, except as expressly specified otherwise in an applicable Order.
During the Term, we may release to you updates of the Software that correct faults, add functionality or otherwise amends or upgrade the Software (each a Maintenance Release), but which does not constitute a New Version.
In respect of Software supplied on a software-as-service basis, we may at any time make Maintenance Releases available to you by automatically updating the instance of the Software that we make available to your End Users pursuant to an Agreement.
The provisions of an Agreement that apply to the Software will apply equally to any new modules, functionality, versions and Maintenance Releases that we make available to you.
Confidentiality
Each party may receive information from the other party (disclosing party) during the Term that is marked as confidential or has the quality of confidential information under Applicable Law (Confidential Information).
The party who receives Confidential Information from the disclosing party (receiving party) may not, at any time without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, other than to exercise its rights and perform its obligations under an Agreement or to comply with Applicable Law.
Where we are required to do so under any contract with any Third Party Provider that provides us with services that we use to provide any Ordered Services, we may disclose your Confidential Information to the Third Party Provider.
Confidential Information excludes information:
that is independently developed, obtained or known by the receiving party, without breaching any obligation of confidence to the disclosing party;
that the receiving party can prove was already known to it at the time it received the information from the disclosing party;
that is in the public domain, except where due to a breach of an Agreement or any breach of any obligation of confidence or Applicable Law; or
that the receiving party must disclose under the rules of any stock exchange on which it or its holding company is listed.
Acceptable Use
You must ensure that if an Order specifies that only certain persons may access and/or use Ordered Products and Services (each, an End User), that each such End User:
complies with each relevant Agreement, as if the End User was you;
complies with all applicable Documentation, Applicable Law and our directions and policies (including any security policy) in the course of such access and/or use;
does not infringe or permit any person to infringe any of our, or our licensors’, IPR;
provides us with access to Your Data, Personnel, Your Equipment and/or any cooperation or assistance as necessary for us to carry out our duties under any relevant Agreement;
does not provide their passwords or other access credentials to any other person;
only used the Ordered Products and Services for the Permitted Purpose;
immediately notifies us of any unauthorised or suspected unauthorised use or disclosure of any access credentials for Ordered Services; and
uses reasonable and appropriate security measures and precautions when using any Ordered Services.
You must:
ensure that you maintain a reliable internet connection to access and use applicable Ordered Products and Services;
ensure that you maintain a reliable internet connection for us to connect to Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises, where required by us to provide any Ordered Services;
ensure that Your Premises are suitable and maintained in a manner suitable for the use of any Ordered Products and Services; and
not do anything that interferes with or prevents the proper functioning of any Ordered Services.
The availability of any Ordered Services will be subject to any technical and non-technical limitations or restrictions as set out in the Specifications and/or Documentation.
Unless otherwise expressly specified in an Agreement, you must not, and must not permit any person to, use any Ordered Services:
to copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance any Ordered Services or any trade marks, any patent or copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to any Ordered Services;
in any manner that breaches Applicable Law or violates all or any legal rights of any person in any jurisdiction (including any person's privacy, such as by way of identity theft or “phishing”);
to license, sublicense, resell, assign, novate, transfer, distribute, or provide others with access to, any Ordered Services;
to store, transmit, distribute or introduce malicious programs into our systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);
to make fraudulent or misleading offers of goods or services;
to carry out security breaches or disruptions of network communication (security breaches include accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
to execute any form of network monitoring which will intercept data not intended for you; or
to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or Third Party Providers,
(collectively, our Acceptable Use Policy).
Fees
You must pay the Fees to us in accordance with the Payment Terms.
We may, by notice to you, increase the Fees payable under any Agreement by CPI once in each 12 month period on and from the anniversary of the Commencement Date, and otherwise as negotiated by you and us.
Except as expressly specified otherwise in the Payment Terms, all invoices issued by us must be paid in advance within fourteen (14) days from the date that you receive the invoice.
The Fees are exclusive of all taxes such as GST and you agree to pay all such taxes to us, in respect of any supply (as that term is defined in the GST Law) made for the purposes of the relevant Agreement. You must pay all such taxes at the same time as the Fees in accordance with the Payment Terms.
Without limiting any other rights or remedies available to us or you, we may suspend our obligations under an Agreement and your access to Ordered Services if you fail to pay the Fees in accordance with the Payment Terms.
If you fail to make any payment due to us under an Agreement in accordance with the Payment Terms then, we may notify any credit reporting body or agency of the default and without limiting our rights and remedies, you shall pay interest on the overdue amount, up to the highest rate of interest available under Applicable Law specified by us. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and you shall pay the interest together with the overdue amount upon demand by us.
Liability
Ordered Products and Services and any Output does not constitute financial, legal or other advice. You must obtain all appropriate professional, financial, legal and other advice as applicable before relying on any Output. You must not represent (either expressly or impliedly) that any Output is our advice.
A party is not liable for any failure to perform its obligations under an Agreement to the extent such failure was caused by the other party or the other party’s Personnel.
Except to the extent such loss cannot be excluded from an Agreement under non-excludable Applicable Law, neither party is liable to the other party for any loss of profits, loss of business opportunity, loss of revenue (other than caused by your failure to pay the Fees) or loss of savings, or for any other consequential or indirect loss or damage, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage is foreseeable or not.
Except to the extent such loss cannot be excluded from an Agreement under non-excludable Applicable Law or specified otherwise in an Order, a party (in this clause 12.4, the first party)’s aggregate liability for all loss and damage that the other party may incur due to one or more breaches of the Agreement by the first party, that is not otherwise excluded by the terms and conditions of the Agreement, is, except as otherwise specified in the applicable Order, capped at an amount equivalent to the amount of the Fees paid and payable under the Agreement in the 12 months prior to the last breach.
Where liability for breach of any guarantees under the ACL or similar state or territory law can be limited, our liability arising from any breach of those guarantees (if any) is limited, where reasonable, at our option:
with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and
with respect to services, to the supply of the services again or the cost of re-supplying the services again.
Other than any non-excludable guarantees (if any) implied into an Agreement under the ACL or similar state or territory law, all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.
Force Majeure Event
A party is not liable for any failure to perform its obligations under an Agreement if such failure was caused by a Force Majeure Event. If a Force Majeure Event that prevents a party from performing any of its material obligations under an Agreement continues for forty-five (45) consecutive days, either party may terminate the Agreement by prior written notice to the other party while the Force Majeure Event continues.
Insurance
We will, at our own cost and expense, obtain and maintain during the Term, the following insurances for all and any claims arising in connection with the performance of each relevant Agreement:
workers compensation insurance covering liability for our employees; and
products liability insurance in the sum of ten million dollars ($10,000,000);
professional liability insurance in the sum of two million dollars ($2,000,000);
Termination
A party may terminate an Agreement by written notice to the other party if the other party (the defaulting party) commits a breach of the Agreement:
that is not remediable; or
that is remediable and the defaulting party fails to remedy the breach within fourteen (14) days of receiving written notice from the other party requiring the defaulting party to remedy the breach.
We may terminate an Agreement by notice to you if a Third Party Provider ceases to provide hardware, software, products or services that we require to comply with our obligations to supply the Ordered Products or Services to you under that Agreement, except where the Third Party Provider ceases to do so due to our breach of an agreement between us and the Third Party Provider. If we wish to terminate an Agreement under this clause 15.2, we will provide you with at least sixty (60) days prior written notice of termination, or if that is not possible, as much notice as is possible in the circumstances.
Either party may terminate an Agreement by written notice to the other party if the other party suffers an Insolvency Event, except where such termination would contravene the Corporations Act 2001 (Cth).
If an Agreement is terminated for any reason, each party shall, at the other party’s option, promptly return or destroy all copies of the other party’s Confidential Information in its possession or control to the other party.
If an Agreement is terminated prior to the expiry of the Initial Term or any then current Renewal Term (other than due to our breach, where you terminate the Agreement under clause 15.3 or where the Agreement is terminated by either party under clause 13), you must pay any early termination fees specified in the Order and/or applicable Service Schedule (collectively, the ETFs). By entering into an Agreement, you acknowledge that the ETFs are a reasonable estimate of the loss that we will suffer due to an early termination of the Agreement. If ETFs are payable, we will issue a tax invoice to you in respect of the ETFs and you will pay that invoice within thirty (30) days from the date that you receive the invoice.
Upon termination of an Agreement we will have no further obligation to supply Ordered Products and/or Ordered Services under the Agreement and any rights or obligations that, by their nature, survive termination shall so survive, including any provision dealing with confidentiality, IPR, limitation of liability, dispute resolution and jurisdiction.
Termination of an Agreement does not affect any accrued rights of either party.
Notices
All notices required or permitted to be made under an Agreement shall be in writing and shall be deemed delivered if:
delivered in person;
sent by post to the recipient’s postal addresses identified in the relevant Order; or
sent by email to the recipient’s email addresses identified in the relevant Order.
Notice given under subclause 16.1(a) shall be deemed to have been received by the recipient upon delivery.
Notice given under subclause 16.1(b) shall be deemed to have been received by the recipient six (6) Business Days after posting if posted domestically in Australia, or twenty (20) Business Days after posting to or from any other country.
Notice given under subclause 16.1(c) shall be deemed to have been received by the recipient on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email, unless a delivery failure email is received, or otherwise when a reply to the email is received.
Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 16.
Dispute Resolution
Before court or arbitration proceedings other than for urgent interlocutory or equitable relief may be commenced by either party to an Agreement against the other party, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with an Agreement (including any dispute as to the validity, breach or termination of an Agreement, or as to any claim in tort, in equity or pursuant to any statute).
Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party specifying the nature of the dispute.
Upon receipt of the notice of dispute, senior representatives of the parties must meet in person, by telephone, via video conference or by other agreed means and attempt to resolve the dispute.
If within ten (10) Business Days of receipt of the notice of dispute, the dispute is not resolved, then the parties shall refer the dispute to the Resolution Institute, (ACN 008 651 232); email: infoaus@resolution.institute; telephone: (02) 9251 3366 for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.
The parties must co-operate with Resolution Institute as facilitator.
If within ten (10) Business Days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular, the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Mediation Rules.
Nothing in this clause 17 shall prevent any party from seeking urgent interlocutory or equitable relief in connection with any Agreement.
Each party will bear its own costs in respect of complying with clauses 17.1 - 17.6.
Non-Solicitation
Neither party (in this clause 18.1, the first party) may, without the prior written consent of the other party, engage, employ, induce or cause a third party to induce any of the other party's employees engaged in the performance of an Agreement to enter into a contract for service or a contract of employment with the first party.
Clause 18.1 will only apply during the Term and for the period of one year from: (a) the expiry of the Term; or (b) the effective date of termination (if an Agreement is terminated prior to the expiry of the Term).
Employment or engagement of any employee of the other party by the first party following the employee’s submission of a job application in response to a general advertisement placed on a jobs website or in a newspaper advertisement will not constitute a breach by the first party of clause 18.1.
The parties agree that the restrictions in this clause 18 are necessary to protect the legitimate interests of each party.
Privacy
In this clause 19, the following definitions apply:
Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.
APP: an Australian Privacy Principle as defined in the Privacy Act.
APP Entity: an APP Entity as that term is defined in the Privacy Act.
Eligible Data Breach: has the meaning given to that term in the Privacy Act, occurring on or after 22 February 2018.
Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information we have collected, held, used or disclosed in the course of or relating to the Agreement.
Personal Information: means any personal information (as defined in the Privacy Act) that we collect, hold, use or disclose in the course of performing its obligations under the Agreement.
Sensitive Information: has the meaning given to that term in the Privacy Act.
We warrant that we comply with and will continue to comply with the Privacy Act and all other applicable Data Protection Laws.
You warrant that you comply with and will continue to comply with the Privacy Act and all other applicable Data Protection Laws.
We will:
handle all Personal Information in accordance with our privacy policy to the extent that policy is not inconsistent with the requirements of this clause 19 or the Agreement;
only use Personal Information for the purpose of performing our obligations under the Agreement;
comply with any reasonable directions given by you relating to:
Personal Information to the extent that they are not inconsistent with the requirements of this clause 19; and
a Data Incident or Eligible Data Breach;
ensure that any Personnel of us who are required to access or handle Personal Information are made aware of the obligations set out in this clause 19;
protect Personal Information in our possession or control from:
misuse, interference and loss; and
unauthorised access, modification or disclosure;
ensure that Personal Information is only made available to our Personnel on a need-to-know basis as necessary for our performance of its obligations under the Agreement;
promptly notify you in writing if we become aware of our or any third party's any actual or possible:
breach of any of the obligations in this clause 19; or
misuse or loss of Personal Information,
whether by us or any third party;
notify you immediately in writing if we become aware of any:
request regarding access to, or correction of, any Personal Information;
any complaint about the handling of Personal Information;
any complaint made to us about our handling of Personal Information generally or beyond the scope of the Agreement; and
disclosure of Personal Information required by law; and
not disclose Personal Information to a person who is not in Australia without your express written consent.
If it is necessary for the performance of the Agreement, we may disclose Personal Information to a person who is not in Australia provided that person provides a written statement in a form satisfactory to you and us, before any such disclosure, which states that the person:
agrees to comply with the APPs in relation to the collection, use, disclosure, storage and destruction or de-identification of Personal Information disclosed to it in the course of the Agreement;
has a data breach response plan which includes a mechanism for notifying us where there are reasonable grounds to suspect a Data Incident and outlines appropriate remedial action (based on the type of Personal Information to be handled under the agreement); and
will enter into a contractual arrangement protecting the Personal Information with any third parties to whom it discloses the Personal Information (for example, that person's subcontractor).
In addition to our obligations in this clause 19, we also commit to take each of the following actions if we become aware, or there are reasonable grounds to suspect, that a Data Incident has occurred:
take steps to resolve the Data Incident and prevent any further serious harm to affected individuals;
immediately notify you in writing stating:
the nature and details of the Data Incident;
the specific Personal Information affected;
the actions taken by us; and
the recommended next steps for each of the parties and the affected individuals;
identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident;
engage in regular open and good faith discussions with you regarding:
the conduct and outcomes of the investigation;
its ongoing actions to contain and resolve the Data Incident and prevent any further serious harm to affected individuals;
in the case of an Eligible Data Breach, whether you or we will make the relevant notifications under the Privacy Act; and whether and to what extent any public or media statements will be made (in each case, your decision to be final); and
where we are making the relevant notifications referred to in paragraph (iii), we must submit the notifications to you for approval before they are made (such approval to be given promptly and not to be unreasonably withheld).
Each party will ensure that its Personnel who are required to handle Personal Information in the course of the Agreement are made aware of the obligations of that party in this clause 19.
You:
acknowledge that we are reliant on you for direction as to the extent to which we are entitled to use Personal Information disclosed or made available to us in the course of and for the purpose of the Agreement; and
will indemnify us for any claim brought by any third party in connection with any act or omission by us in relation to a third party's Personal Information to the extent that such act or omission resulted from your instructions or a breach by you of your obligations or warranties in this clause 19 (and/or where any such warranty was not true when given) and all associated losses, liabilities, costs, charges or expenses and all other reasonable professional costs and expenses suffered or incurred by us.
Except to the extent caused or contributed to by the negligent act or omission, wilful misconduct or breach of the Agreement by you or for anything that you are liable for, including the subject of clause 19.8(b), we will indemnify you against any losses, liabilities, costs, charges or expenses and all other reasonable professional costs and expenses suffered or incurred by you arising out of or in connection with any breach by us of our obligations in this clause 19.
Each party shall provide the name and contact information for its Personnel who shall serve as a primary security contact and shall be available to assist the other party 24 hours per day, 7 days per week as a contact in resolving obligations associated with a Data Incident or Eligible Data Breach.
General
A party may not assign its rights or novate its obligations under an Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).
If any part of an Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement is still enforceable.
The relationship between you and us is non-exclusive and nothing in an Agreement will:
prevent us from supplying any goods or services to any third party in our absolute discretion; or
prevent you from engaging any third party to provide you with any goods or services in your absolute discretion,
unless the relevant Order specifies otherwise.
We are an independent contractor and nothing contained in an Agreement creates any relationship of partnership, employment, joint venture or agency between you and us.
Each Agreement is the entire agreement between you and us about its subject matter and supersedes all other proposals, arrangements, representations or agreements between you and us about its subject matter. Without limiting the foregoing provisions of this clause 20.5, any terms of trade, purchase order terms or other terms and conditions that you issue to us (whether before or after the Agreement is entered into) are not binding and do not form part of the Agreement.
An Agreement may be amended only by a written document signed by you and us and a provision of or a right under an Agreement may not be waived or varied except in writing signed by you and us.
Each Agreement is governed by the laws in force in New South Wales. You and we submit to the non-exclusive jurisdiction of the courts located in New South Wales and the courts of appeal from them in relation to any proceedings and disputes concerning an Agreement.
Definitions and Interpretation
In these Terms of Service, words in bold font in parentheses have the meanings given to them therein. In addition, words defined in the relevant Order have the meanings given therein and the following words have the following meanings:
Australian Consumer Law and ACL mean schedule 2 to the Competition and Consumer Act 2010 (Cth).
Applicable Law means any legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including Data Protection Laws, in any applicable jurisdiction.
Business Day means any day from Monday to Friday excluding public holidays in New South Wales.
Business Hours means 9:00am – 5:00pm on Business Days.
Commencement Date means the date from which an Agreement will commence in accordance with clause 2.1.
CPI means the most recently published Consumer Price Increase (CPI) movement (All Groups CPI, Australia, annual movement (%)) published by the Australian Bureau of Statistics (ABS) or any replacement thereof published by the ABS.
Data Protection Laws means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth).
Documentation means any user manuals, notes, technical instructions, compatibility requirements and other documentation provided by us in respect of the Ordered Products and Services.
End User has the meaning given to it in clause 10.1.
Fees or Charges means any fees and charges specified in an Order or any attachment thereto.
Force Majeure Event means war, industrial action, government action, natural disaster, flood, labour disturbance, pandemic or other circumstances beyond a party’s reasonable control.
GST and GST Law have the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (d) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (e) anything analogous or having a substantially similar effect to any of the events described in (a) through (d) above occurs under the law of any applicable jurisdiction.
IPR means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under Article 2 of the Convention Establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Object Code means Source Code in compiled or binary form.
Order means a document entitled “Order”, “Proposal”, “Quotation”, “Statement of Work” issued by us to you that you confirm to us you accept (either by signing it and returning it to us, or by otherwise indicating your acceptance of it including by paying any deposit or other amount specified in the document). Upon such confirmation, you will be deemed to have submitted the Order to us.
Ordered Product has the meaning given in clause 3.1.
Ordered Service has the meaning given in clause 3.1.
Our Equipment means any equipment, systems, software, networks, servers, hardware, cabling, ports, switches or other ancillary equipment or tools owned or operated by us.
Output means any reports and other output generated by any Ordered Services.
Payment Terms means payment terms set out in an applicable Order.
Permitted Purpose means any permitted purpose set out in an applicable Order in respect of any product and/or service.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
Personnel means a party’s employees, agents, officers and subcontractors. We are not your Personnel and you are not our Personnel for the purposes of this definition.
PPSA means Personal Property Securities Act 2009 (Cth) as amended from time to time and any regulations thereunder.
Provisioning means setup, installing and/or making a relevant Ordered Service available for use by End Users and “Provision” has a corresponding meaning.
Security Interest has the meaning given to it in the PPSA.
Service Schedule means a document with that title that we supply to you.
Service Level means a level of service expressly described as a “service level” in the relevant.
Source Code means human readable computer code.
Specifications means the technical, functional and non-functional specifications for Ordered Products and Services as set out in, referred to from, or attached by us to, an Order or relevant Service Schedule.
Term means the term of an Agreement determined pursuant to clause 2.
Third Party Provider means any of our third party suppliers, vendors, subcontractors or providers who provide any goods or services that we rely on, supply or resupply as part of Ordered Products and Services.
We, IronSights, our and us means Ironsights Pty Ltd (ACN 673 117 961).
You and your means, in respect of any Agreement, the party that has entered into the relevant Agreement with us, as specified in the Order.
Your Equipment means any systems, software, networks, servers, equipment, hardware, cabling, ports, switches and/or other ancillary equipment or tools owned or operated by you or on your behalf, other than Our Equipment. For the avoidance of doubt, Our Equipment is not Your Equipment.
Your Premises means any premises owned, controlled or occupied by you specified in an Order.
Unless the context requires otherwise:
a reference to “a party” means you or us (as the context dictates) and a reference to “the parties” means you and us;
headings and underlinings are for convenience only and do not affect the construction of an Agreement;
a provision of an Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
currency or “$” refers to Australian dollars;
a reference to a statute or regulation includes amendments thereto;
a reference to time is to time in New South Wales;
a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;
the words “such as”, “including”, “particularly” and similar expressions are not words of limitation and shall be interpreted as if the words “but not limited to” immediately followed them in each case; and
a reference to the singular incudes the plural and vice versa.
IronSights Pty Ltd (ACN 673 117 961).
View previous versions
No previous versions are available. This is the first published version of the document.
Questions
About these terms?
We're here to help.