Parties Nextin Pty Ltd ABN 63 167 850 759 of 15A King William Street, Kent Town, South Australia, Australia (“NEXTIN Pty Ltd”) And; The Party as detailed in the Schedule of the sign up form used to create an account to use the Nextin Application (“Client”) Backend. a) Nextin is the owner, operator and/or licensee of the Nextin Application. B) The Client wishes to obtain a licence to use the Nextin Application to promote itself and advertise its own goods and services in accordance with the terms of this agreement.
1: Agreed terms and Conditions
Defined terms & interpretation 1.1 Defined terms in this agreement: Nextin Application means the software application used to deliver the Nextin Service to the Client and any user and includes any updates made available by Nextin. Nextin licence Fees and Charges mean the fees and charges payable by the Client to Nextin. Commencement Date means the date of execution of this agreement as specified by the acceptance of these terms and conditions of use by the client in any format or such other date as otherwise agreed by the parties. Confidential information the party - means all information concerning the business or products and services of a party (include trade secrets and confidential Know-How) disclosed by that party to the other party for the purposes of this agreement and includes all information relating to the Nextin Application (including its composition and method of operation), regardless of its form and whether the Client becomes aware of it before or after the Commencement Date. Intellectual Property Rights or IPR means all intellectual property rights, including but not limited to, the following rights: a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential; b) any application or right to apply for registration of any of the rights referred to in paragraph (a) and c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia). Whether or not such rights are registered or capable of being registered. Term has the meaning set out in clause 10.1. Third Party Advertising means the promotion of goods or services using trademarks not owned by the client. Third Party Services means any third party software, application or website through which Client Content is available and which the Client has consented to Nextin’s use of or interface to. A user means any user who accesses or interacts with the Nextin Application. Client Content means any data, information, Logos and other identifiers provided or made available by the Client to Nextin (whether personally via the Client’s website(s) or otherwise using Third Party Service nominated by the Client) and which is uploaded into and/or used in the Nextin Application. Client content does not include any Third Party Advertising. Website means the website operated by Nextin for the Nextin Application located at [www.nextin.com.au] or such other address as may be notified to the Client from time to time.
2.1 Registration The Client must a) register and provide all information that is required by Nextin during (or at any time following) the registration process to use the Nextin Application; and b) comply with the terms and conditions of this agreement and any other directions reasonably issued by Nextin from time to time regarding the Client’s use of the Nextin Application. 2.2 Account responsibility - Nextin is not responsible for any activity that may occur as a result of disclosure of any information by the Client to Nextin or any third party. At all times the Client is solely responsible for all activity that occurs via the Client’s
account created under clause 2.1 and/or its use of the Nextin Application. 2.3 Amendments Nextin reserves the right to amend the Nextin Application (including any of it’s functionality) or the terms of this agreement at any time (including as a result of amendments made by a relevant Third Party Service to its functionality or terms and conditions of use). Subject to any right the Client has to terminate this agreement, any amendments made to these terms and conditions will be effective immediately on them being available on the Website and/or the Nextin Application. The Client’s ongoing use of the Nextin Application will constitute acceptance of the varied terms. 2.4 Third Party Advertising Nextin reserves the exclusive right to include content advertising third party goods or services or its own advertising content as part of the Nextin Application. The Client must not use the Nextin Application for the display of Third Party Advertising without the prior written consent of Nextin.
3.1 Licence Subject to the timely payment of the Nextin Licence Fee and compliance with the terms of this agreement, Nextin grants to the Client a revocable, non-exclusive, non- transferable licence to use the Nextin Application for the purposes of Advertising its goods and services during the term. 3.2 Licence restrictions The Client must not: a) alter, adapt or modify the Nextin Application; b) remove any of Nextin’s copyright notices, logos or other marks for the Nextin Application; c) reverse engineer or decompile the Nextin Application (except as permitted by law) or attempt to do so; d) sell, assign or sub-licence any of its rights or obligations under this agreement without the prior written consent of Nextin; or e) copy or reproduce (including engaging any other person to copy or produce) the Nextin Application by any means or in any form without Nextin’s prior written consent. 3.3 Service limitations The Client acknowledges that: a) the Nextin Application is provided on an ‘as-is’ basis; b) Nextin cannot and does not guarantee that access and use of the Nextin Application will be uninterrupted or that the Nextin Application will operate error-free; c) Nextin and its licensors, contractors or partners have implemented reasonable security measures in relation to the Nextin Application, however Nextin is in no way responsible for any unauthorised access to the Nextin Application, or any disclosure, loss or corruption of Client Content.
4: Client Content
Client Content license The Client grants to Nextin, with effect from the Commencement Date a non-exclusive, irrevocable, perpetual, royalty-free license to use the Client Content for any purpose in any form including, without limitation, in a de-identified form for benchmarking and statistical purposes in accordance with the Privacy Act 1988 (Cth). 4.4 Removal Nextin reserves the right to reject, block, modify, suspend or remove any Client Content made available via the Nextin Application at any time. 4.5 Release By advertising its goods and services via the Nextin Application, the Client acknowledges and agrees that it: a) is solely responsible for its advertising of its own goods and services via the Nextin Application; and b) must resolve any complaints or disputes from recipients of the advertising to the satisfaction of Nextin whether referred to the Client by Nextin or Otherwise.
6: Fees and payment
6.1. Fees and charges a) in consideration for being provided access to the Nextin Application, the Client must pay to Nextin the Nextin Licence Fees and Charges. b) The Fees and Charges will consist of an initial Setup fee as well as an ongoing Monthly fee based on business size and features found in the Nextin Application. The Client acknowledges that all the Fees and Charges have been explained to them. c) 6.2. Nextin will provide the Client with an invoice for the Nextin Licence Fees and Charges due and payable by the Client to Nextin and any other payments due and payable.
6.3 Payment Terms a) All invoices issued by Nextin must be paid within seven (7) days of the invoice date. B) Nextin may require the Client to register a direct debit facility as a condition of the Clients use of the Nextin Application either before or after the Commencement Date. 6.4. No Deduction The Nextin Licence Fee must be paid in Australian or US dollars free and clear of any taxes imposed by or under the authority of any government or public authority. 6.5. Suspension if any amount payable under this agreement by the Client is outstanding, Nextin may (without limiting its other rights) suspend the Client’s access to the Nextin Application until all outstanding charges are paid in full
7. Goods And Services Tax (GST)
7.1. Consideration does not include GST unless specifically described in this agreement as ‘GST Inclusive’, any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this agreement does not include any amount on account of GST. 7.2. Gross up of consideration where any supply to
be made by one party (Supplier) to another party (Recipient) under or in accordance with this agreement is subject to GST (other than a supply, the consideration for which is specifically described in this agreement as ‘GST Inclusive’): a) the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and b) the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply. 7.3 Reimbursements If any payment to be made to a party under or in accordance with this agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such a reduction to be effected before any increase in accordance with this clause 7.2. 7.4 Tax Invoices The Supplier must issue a tax invoice to the Recipient in respect of any taxable supply made by the Supplier under or in accordance with this agreement, such ta invoice to be issued no later than 28 days after the Supplier receives the consideration for that taxable supply and the Recipient requests a tax invoice from the Supplier. 7.5 Adjustments if an adjustment event has occurred in respect of a taxable supply made under or in accordance with this agreement, any part that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties guarantee to take whatever steps necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid not later than 28 days after the supplier first becomes aware that the adjustment event has occurred. 7.6 Interpretation A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
8: Intellectual Property Rights
8.1 Ownership and rights. The Client Acknowledges and agrees that: a) nothing in this agreement transfers or assigns to the Client any intellectual property Rights owned or used under the licence by Nextin (including in or in relation to the Nextin Application); b) all existing goodwill in the Nextin Application will vest , in Nextin; and c) the client must not during the term or after termination of this agreement, apply for registration as a trade mark, domain name, business or company name any word or logo that is the same as, or substantially identical with or deceptively similar to any trade marks, business name or any other trade marks used under licence by Nextin.
9: Liability and indemnity
a) To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from this agreement. Where legislation implies any condition or warranty, that condition or warranty, and that legislation prohibits Nextin from excluding or modifying Nextin Application or warranty will be deemed included but Nextin’s liability will be limited for a breach of that condition or warranty to the minimum remedy provided for in that law. b) If
a supply by Nextin under these terms and conditions is a supply of goods & services to a consumer with the meaning of the Australian Consumer Law, nothing contained in these terms and conditions excludes, restricts or modifies the Nextin Application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, provided that, to the extent that the Australian Consumer law permits Nextin to limit its liability, then Nextin’s liability shall be limited to: i. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and ii). In the case of goods, supplying equivalent goods or having the good repaired. c) The Client acknowledges that to the extent permitted by law, Nextin (or any of its contractors) does not accept liability for any errors, omissions, expenses, losses or damages caused by: i. the client’s access to and /or use of the Nextin Application; ii) the client’s dealings with users arising from use of the Nextin application; and/or iii) any failure of the Nextin application (or in networks or servers used to provide the Nextin Application). d). As a condition of the Clients use of the Nextin Application the client agrees to indemnify and keep indemnified Nextin and all of its officers, agents, employees or contractors (Personnel) against all expenses, losses and damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Nextin or its personnel) that Nextin or its personnel may sustain or incur as a result, whether directly or indirectly, of: i. any breach of this agreement by the Client: ii) the clients access to and/or use of the Nextin Application; and iii) any loss of, or damage to, any property, or injury to, or death of, any person caused by the Clients access to and/or use of the Nextin Application. e) Nextin excludes all liability to the Client for any consequential, indirect, incidental or punitive loss or damages, however arising, including from a breach of a contract, tort (including negligence) or under statute.
10: Term & Termination
10.1 This Agreement commences on the Commencement Date and is valid for ONE (1) YEAR. This Agreement shall automatically renew for successive periods of three (3) Months thereafter unless either Party shall give notice of cancellation. The cancelling party must notify the other party with its intention to cancel at least Thirty (30) days prior to the expiration of the initial term or any renewal thereof. If a Client terminates this Agreement there shall be immediately due and payable by the Client an amount equal to the remainder of the One (1) Year or Three (3) Month period. 10.2 Termination a) Nextin may terminate this agreement: i) with immediate effect if the Client: A. breaches a term of this agreement and does not rectify that breach within 7 days of a notice from Nextin requiring the client to do so; or B. becomes subjected to any form of insolvency administration. ii. Without notice for any reason if Nextin deems it necessary to do so. B) The client may terminate this agreement; i. with immediate effect if Nextin breaches a term of this agreement and does not rectify that breach within 7 days of a notice from the Client requiring it to do so. 10.3 Consequences of termination a) If this agreement expires or is terminated for any reason: i. the clients licence to use the Nextin Application will immediately cease and Nextin may immediately suspend the Client’s access to the Nextin Application; ii) the Client must immediately cease using all Intellectual Property Rights of Nextin that it was permitted to use during the term of the agreement; and iii) the Client will stop using Nextin’s Confidential Information and will return or destroy such Confidential Information as directed by Nextin. b) Termination of this agreement under this clause (10) does not affect any accrued rights or
remedies of either party. 10.4 Survival of certain provisions - the following clauses will survive expiry or termination of this agreement: clause 7 (Intellectual Property Rights), clause 9 (Liability and indemnity) clause 10.3 (Consequences of termination) and clause 12.6 (Governing law).
11: Confidential information
11.1 Use and disclosure The Client: a) may use Confidential information only for the purposes of this agreement; and b) must keep confidential information only for the purposes of this agreement; c) must keep confidential all confidential information except: i. for disclosure permitted under clause 11.2; and ii. To the extent (if any) the Client is required by law to disclose any confidential information. 11.2 Permitted disclosure. The Client may only disclose Confidential information to persons who: a) have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and b) before disclosure have been directed by the Client to keep confidential Information (each Direction) 11.3 Obligations The Client must: a) ensure that each person to whom it discloses confidential information under clause 11.2 complies with each direction; and b) notify Nextin of, and take all steps to prevent or stop a suspected or actual breach of any direction. 11.4 Disclosure by law If the Client is required by law to disclose any confidential information to a third person (including, but not limited to, Government) the Client must: a) before doing so: i)notify Nextin; and ii) give Nextin a reasonable opportunity to take any steps that Nextin considers necessary to protect the confidentiality of that information; and b) notify the third person that the information is confidential information of Nextin.
12.1 Execution warranty a) The Client warrants and represents to Nextin that i) the entry into this agreement by the client has been properly authorised by all necessary corporate action; and ii. It has full corporate power and lawful authority and the legal power to execute and deliver this agreement and to perform or cause to be performed its obligations under this agreement. b) The individual person who purports to enter into this agreement on behalf of the client in the manner prescribed by Nextin personally warrants that he or she has the express authority of the client to bind the Client to the terms of this agreement. 12.2 Relationships nothing in this agreement constitutes a relationship of employer or employee, principal and agent or partnership between Nextin and the Client. 12.3 Severance Part or all of any provision of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining provisions of this agreement continue in force. 12.4 Delay Nextin accepts no liability for any failure or delay in complying with this agreement where such failure or delay is due to circumstances beyond Nextin’s reasonable control. 12.5 Waiver if Nextin waives any rights available to it under this agreement on one occasion, this does not mean that those rights will be automatically waived on any other occasion. Waivers must be in written form and signed by Nextin or its authorised representative. 12.6 Governing law: The law applicable in Victoria, Australia governs this agreement. Each part irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia.