terms of service.

Please read these terms carefully before using our services.

Standard Terms of Service — Tecoda Pty Ltd

This page is to inform customers of Tecoda Pty Ltd regarding our Standard Terms of Service. If you engage with Tecoda Pty Ltd for any of our supplied services, you are agreeing to our Standard Terms of Service, in addition to any other specific terms if applied to your agreement. These terms are applied to all ad-hoc support and consultation requests.

Suppliers Details

Tecoda Pty Ltd ACN 616 121 156
Suite 401, Tower 1, 55 Plaza Parade
Maroochydore QLD 4558

Operative Provisions

1. Services

  1. Tecoda will provide the Services to the Customer throughout the Term on the terms set out in this agreement.
  2. The Customer may request that Tecoda provide Additional Services from time to time.
  3. If Tecoda agrees to provide Additional Services, Tecoda will provide the Customer with notice of the scope of the Additional Services and of any Additional Fees which are payable.
  4. The terms of this agreement will apply to any Additional Services, in addition to and subject to any other terms which Tecoda advises the Customer will apply to the Additional Services.

2. Availability of Services

  1. The Customer acknowledges that:
    1. Tecoda will determine which Personnel will provide the Services;
    2. Any information provided by the Customer which is inaccurate, incomplete or which is not provided to Tecoda within a reasonable time of request, could have a material effect on the Services or may result in Additional Fees applying;
    3. Tecoda is not responsible for verifying the underlying accuracy, truthfulness or completeness of any information provided by the Customer;
    4. User Content and other data generated in connection with the Services will be collected and handled by Tecoda in accordance with the Privacy Policy.
  2. The Customer authorises Tecoda and its Personnel to act as the Customer's agent where strictly necessary to provide the Services.

3. Availability of Software

  1. The Customer acknowledges that:
    1. Tecoda may modify and update the Software from time to time for any reason, including but not limited to improving the functionality and appearance of the Software or to create additional features or extensions;
    2. Tecoda will take reasonable steps to advise the Customer in advance of any update that may substantially alter the functionality, reporting capability or general experience of using the Software;
    3. Tecoda may (but is not obliged to) monitor the use of the Software by the Customer or End Users to assess compliance with this agreement;
    4. The compatibility of the Software and the specifications required to access the Software with certain devices may vary over time.

4. Customer Obligations

  1. The Customer must:
    1. promptly upon request, provide Tecoda with any information and access to the Customer's premises and equipment Tecoda requires to provide the Services and Hardware;
    2. not, and ensure that the End Users do not, use the Services, the Software or any part thereof:
      1. to infringe or authorise the infringement of any Intellectual Property Rights or other rights of a third party;
      2. to store or distribute any illegal, or illegally obtained content;
      3. in any manner, or to do anything which is, contrary to law;
      4. to create or distribute any spam or unsolicited commercial message or engage in any other unlawful marketing scheme;
      5. in a manner which could adversely affect the provision of the Services or Tecoda's ability to provide similar services to others in the course of its business;
    3. not:
      1. modify any part of the Software to enable it to operate without a valid licence key or otherwise tamper with the licensing component of the Software or use a counterfeit access key;
      2. attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive or access the source code, techniques, processes, algorithms, know-how or any other information from the Software;
      3. modify, create derivatives of or improvements to, decompile or otherwise attempt to access or extract the source code of the Software without Tecoda's permission;
      4. copy, archive, download, reproduce, distribute, sell, syndicate, broadcast, display, perform or otherwise use the Software other than as permitted by this agreement;
      5. remove any proprietary notices or labels from the Software or Hardware;
    4. not, and ensure that its End Users do not, create or circulate User Content that Tecoda reasonably determines is illegal, misleading, threatening, defamatory, discriminatory, hateful, obscene, profane, graphically violent or pornographic or which incites violent or dangerous activities;
    5. accept responsibility for the User Content;
    6. not allow more than (the maximum) Concurrent End Users to access the Software at any one time;
    7. keep secret any username and password used to access the Services;
    8. ensure that all End Users comply with this agreement to the extent it applies to them as a user of the Services and Hardware;
    9. ensure that the End Users are only the staff members of the Customer;
    10. take reasonable steps to ensure that all information provided to Tecoda is true, accurate, complete, up to date and is not misleading;
    11. ensure it has adequate backups of all data to which Tecoda will have access during the Term and ensure that it is able to restore such backups in the event of any data becoming corrupted;
    12. use the Services and Hardware in accordance with law and Tecoda's reasonable instructions;
    13. meet all Dependencies and not use the Software or Hardware with unsupported equipment, hardware, software, configurations or other conflicting services;
    14. not do, cause or authorise the doing of anything which may adversely affect or jeopardise the validity of Tecoda's Intellectual Property Rights in the Software;
    15. not do or say anything harmful to the reputation of Tecoda, its Personnel and its business or which may lead a person to cease, curtail or alter the terms of its dealings with Tecoda.

5. Intellectual Property Rights

  1. Subject to the terms of this agreement, Tecoda agrees to provide to the Customer as part of the Services, a limited, non-transferable, non-exclusive license to use the Software during the Term for the purposes contemplated by this agreement, which in no circumstances includes a right to sell or otherwise commercialise the Software.
  2. The Customer must not sub-licence its right to use the Software other than to End Users.
  3. If, at any time during or after the Term, the Customer is in breach of this agreement, Tecoda may revoke, restrict or suspend the licence granted in clause 5.1 by notice to the Customer.
  4. As between the parties, all right, title and interest in the Tecoda Content is owned and retained by, and vests on creation in, Tecoda
  5. As between the parties, the Customer retains all right, title and interest which it holds in the User Content and grants Tecoda a perpetual, transferable, irrevocable, non-exclusive, royalty free licence to use, modify, reproduce, publish, adapt, display, distribute and transmit the User Content in connection with the provision of the Services and for any other purpose contemplated by this agreement.

6. Confidential Information

  1. Subject to clause 6.2, Tecoda must:
    1. keep any Confidential Information relating to the Customer (Customer Confidential Information) confidential at all times;
    2. not use the Customer Confidential Information other than for the purpose of exercising its rights and performing its obligations under this agreement;
    3. only use any Personal Information within the Customer Confidential Information in accordance with the Privacy Policy.
  2. Tecoda may disclose the Customer Confidential Information:
    1. where consent to do so is received from the Customer;
    2. as necessary to carry out the Services or any Additional Services;
    3. to its Personnel, officers, professional advisers or agents and its related bodies corporate;
    4. to the extent required by law or to defend Tecoda's rights.
  3. The Customer must:
    1. keep any Confidential Information relating to Tecoda (Tecoda Confidential Information) confidential at all times;
    2. not use or disclose Tecoda Confidential Information other than for the purpose of exercising its rights and performing its obligations under this agreement.

7. Suspension

  1. Tecoda may suspend or restrict the Services where:
    1. the Customer fails to meet any of its obligations under this agreement, including where any payment to Tecoda is overdue;
    2. a Delay Event occurs, in which case:
      1. Tecoda must promptly provide the Customer with details of the Delay Event and how long Tecoda anticipates it will continue for;
      2. Tecoda will not be liable to the Customer, or in breach of its obligations under this agreement where a breach arises due to, or in connection with the Delay Event;
      3. any party may terminate the agreement by notice to the other parties if the Delay Event materially impairs the Services and subsists continuously for 14 days or more; or
    3. the parties otherwise agree in writing to the suspension or restriction.
  2. Any suspension or restriction of the Services pursuant to this clause 7 which arises due to an act or omission of the Customer does not suspend the Customer's payment obligations under this agreement.

8. Term & Renewal

  1. This agreement commences on the Commencement Date and continues for the Term unless earlier terminated pursuant to this agreement.
  2. Unless either party provides the other party with notice that it does not wish to renew the term of this agreement at least 14 days before the end of the Initial Term or any subsequent term (Current Term), this agreement will automatically renew at the end of the Current Term for the same period of time as the Initial Term (Renewed Term).
  3. Tecoda will endeavour to provide the Customer with notice of the upcoming automatic renewal pursuant to clause 8.2 at least 30 days prior to the end of the Current Term.

9. Termination

  1. Tecoda may terminate this agreement immediately if the Customer commits any of the following acts of default:
    1. fails to pay any amount payable to Tecoda under this agreement when due;
    2. suffers an Insolvency Event;
    3. breaches a term of this agreement that cannot be remedied; or
    4. breaches a term of this agreement (other than a breach under clause 9.1(a) to 9.1(c)) and fails to remedy that breach within 30 days of receiving notice to do so from Tecoda.
  2. The Customer may terminate this agreement immediately if Tecoda commits any of the following acts of default:
    1. breaches a term of this agreement that cannot be remedied; or
    2. breaches a term of this agreement (other than a breach under clause 9.2(a)) and fails to remedy that breach within 30 days of receiving notice to do so from the Customer.

10. Effect of Termination

  1. On and from the effective date of termination of this agreement:
    1. Tecoda will cease providing the Services, Tecoda Hardware and Software to the Customer;
    2. Tecoda may withhold and retain possession of any information or property it holds of the Customer or End Users until any outstanding Fees are paid to Tecoda as required by law;
    3. Tecoda may issue tax invoices for any Services provided up to the effective date of termination and all tax invoices issued by Tecoda become due and payable immediately;
    4. the Customer will not be entitled to any refund of any Fees paid unless required by law or Tecoda agrees otherwise;
    5. the Customer consents to Tecoda providing the Customer's Personal Information to a credit rating agency where this agreement is terminated for default under clause 9.1(a);
    6. subject to clause 10.1(b) and any retention requirement imposed by law, each party must, within 7 days of the effective date of termination of this agreement, deliver up to the other party all of the Confidential Information held, of that other party;
    7. the Customer must cease to use, and deliver up to Tecoda all Tecoda Hardware and Tecoda Content in the possession of the Customer, within 7 days of the effective date of termination of this agreement;
    8. the Customer must pay Tecoda the cost of repair or replacement, at Tecoda's election, for any Tecoda Hardware that is damaged or not in proper working order and condition;
    9. the Customer must promptly permit Tecoda to enter the Customer's premises to recover any property of Tecoda; and
    10. where applicable, Tecoda will not be required to provide the Customer with any assistance to migrate its User Content from Tecoda's servers (where applicable) unless Tecoda agrees to do so as an Additional Service.

11. Disclaimer

  1. To the maximum extent permitted by law, Tecoda:
    1. does not provide any guarantee or warranty or make any representation with respect to the Services or the Software except as expressly set out in this agreement;
    2. disclaims, and the Customer agrees to release Tecoda, its officers and Personnel from, all liability for any Claim or Loss howsoever arising directly or indirectly in connection with the Services, Hardware or the Software, except to the extent that a grossly negligent act or omission of Tecoda caused the Claim or Loss to arise.
  2. Without limitation to clause 11.1, the Customer acknowledges that Tecoda is not responsible for any failure or restricted performance of, or inability to provide, the Services or the Software due to an act or omission of the Customer or a third party, including, but not limited to, any:
    1. internet or intranet connectivity, data restriction, speed or configuration issues; or
    2. issues relating to the services provided by a session initiation protocol provider (e.g. Telstra).
  3. Where Tecoda's liability under this agreement cannot be fully disclaimed, Tecoda's liability for any Loss the Customer suffers in connection with this agreement (howsoever caused, including by Tecoda's negligence), is capped at the total Fees paid by the Customer in the 12 months prior to the Loss arising.
  4. The cap in clause 11.3 applies to any single or cumulative claims by the Customer, and the Customer agrees that Tecoda may plead this limitation of liability in defence to any claims the Customer may bring against Tecoda for any such Loss.
  5. This agreement does not purport to limit any non-waivable rights that the Customer may be entitled to by law. Where non-waivable rights apply to the Customer, to the extent permitted by law, Tecoda limits its maximum liability to the Customer under those laws, at Tecoda's option, to the supply of the Services or Hardware (as applicable) again or the payment of the cost of having the Services or Hardware (as applicable) supplied again.

12. Indemnities

  1. The Customer indemnifies and holds harmless Tecoda, its officers and Personnel from and against any Claim or Loss which Tecoda suffers or incurs arising directly or indirectly out of, or in connection with any breach of this agreement by the Customer or an End User.
  2. The indemnity given by the Customer in clause 12.1 is limited to the extent that any grossly negligent act or omission of Tecoda caused or contributed to the Claim or Loss arising.

13. Variations

  1. The terms of this agreement may be varied:
    1. by written agreement between the parties; or
    2. by Tecoda, provided that the Customer receives notice of any proposed change to a material term of the agreement at least 30 days before the change becomes effective (Effective Date) and the Customer is given the opportunity to terminate this agreement prior to the Effective Date

14. Notices

  1. Notices given under this agreement:
    1. must be in writing and in clearly readable English;
    2. must be signed by the party giving or making it (or signed on behalf of that party by its authorised representative); and
    3. may be delivered to a party by hand or by email to that party's address or email address as shown in this agreement or to such other address or person as a party may specify by notice given in accordance with this clause.
  2. A notice is taken to be duly given and received:
    1. if delivered by hand, when delivered; or
    2. if delivered by email, when sent, provided the sender has not received notice of any failure of the notice to be delivered.
  3. Despite clause 14.2, notices received after 5 pm in the place of receipt or on a non-Business Day are taken to be received at 9 am on the next Business Day.

15. General

  1. Relationship between the parties

    Nothing in this agreement will constitute the parties as employer and employee, agent and principal, partners or otherwise.

  2. Further assurance

    Each party must (at its own expense) do all things that any other party reasonably requires of it to give the other party the full benefit of any obligations owed to the other party and expressed in this agreement.

  3. Counterparts

    This agreement and any variation of this agreement may be executed and take effect in two or more counterparts (including electronically exchanged counterparts), each of which when taken together, will constitute one and the same instrument.

  4. Survival

    Clauses 5.5, 6, 11, 12, 14, 15 and 16.1 survive termination of this agreement.

  5. No waiver

    The failure, delay or omission by a party to exercise, or to partially exercise, a right, power or remedy under this agreement does not operate as a waiver of that right, power or remedy.

  6. Entire Agreement

    To the extent permitted by law, this agreement, the Quote and any other document, to the extent it is expressly incorporated herein, records the entire agreement between the parties in relation to its subject matter.

  7. Cumulative rights

    The rights, powers, authorities, discretions and remedies of a party under this agreement do not exclude any other right, power, authority, discretion or remedy.

  8. Severability

    If any provision of this agreement is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:

    1. where the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
    2. where the offending provision cannot be read down then that provision must be severed from the agreement in which event, the remaining provisions of this agreement operate as if the severed provision had not been included; and
    3. the legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected,

    but only to the extent that is consistent with giving substantial effect to the intentions of the parties under this agreement.

  9. Governing law and jurisdiction

    This agreement is governed by the law of Queensland, Australia. Each party submits to the jurisdiction of the courts in Queensland in connection with matters concerning this agreement.

  10. Assignment by the Customer

    Unless expressly stated otherwise in this agreement, the Customer must not assign, transfer, novate, dispose of, declare a trust over or otherwise create an interest in its rights under this agreement without the prior written consent of Tecoda.

  11. Assignment by Tecoda

    Tecoda may assign, transfer, novate, dispose of, declare a trust over or otherwise create an interest in its rights (or any part thereof) under this agreement at any time without consent and the Customer hereby consents to Tecoda transferring, disclosing or otherwise dealing with the Customer and its End User's Personal Information and User Content for the purpose of effecting the assignment, novation or other transfer of rights under this clause.

  12. Sub-Contracting

    Tecoda may, from time to time, sub-contract any part of its obligations under this agreement to third parties at its own expense.

16. Definitions and Interpretation

  1. Definitions

    In this agreement, the following definitions will apply:

    Additional Fees
    means the fees for any Additional Services.
    Additional Services
    means any services or hardware to be provided to the Customer which are outside of the scope of the Services or Hardware.
    Business Day
    means a day other than that which is a Saturday, Sunday or public holiday in Maroochydore, Queensland.
  2. Interpretation

    In this agreement, unless the context otherwise requires:

    1. words denoting any gender include all genders;
    2. headings are for convenience only and do not affect interpretation;
    3. the singular includes the plural and vice versa;
    4. any schedule or annexure attached to this agreement forms part of it;
    5. a reference to a party includes its legal personal representatives, successors and permitted assigns;
    6. a reference to an amount means that amount in Australian dollars;
    7. a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
    8. a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
    9. unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by 'including', 'for example' or similar inclusive expressions; and
    10. a reference to this agreement means this agreement and includes any variation or replacement of this agreement.

Execution

Executed as an authorised statement in Queensland: Wednesday, 9 November 2022

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