Terms of Service - Coviu Services
Last Update: 17th March 2023
1. Definitions
'Agreement' means this Services Agreement including any annexure.
'Background IP' means any IP which is or has been created by Coviu Global Pty Ltd independently of the work it is doing for the Client under this Agreement and which is provided for the Client’s use as part of the Deliverables.
'Confidential Information' means all information disclosed in any form or media, which is by its nature confidential or which either of us identify as confidential and all copies, notes and records made of such information.
'Coviu' means Coviu Global Pty Ltd, ACN 22 608 925 060, of Stone & Chalk, 11 York Street, Sydney, NSW 2000, Australia.
'IP' (Intellectual Property) means any rights in any existing or future copyright work, patentable invention, design, circuit layout, new plant variety, trademark, know-how or trade secret.
'Project IP' means any IP created by Coviu Global Pty Ltd in the course of providing Services for the Client under this Agreement and which is provided for the Client’s use as part of the Deliverables.
'we', 'us' or 'our' means the Client and Coviu Global Pty Ltd severally.
'you' or 'your' means the Client identified on the cover page.
Other capitalised expressions used in this Agreement have the meanings given to them in the cover page.
2. Coviu Services
2.1 Coviu will perform the Services to professional standards.
2.2 The knowledge and skills that Coviu personnel will use to perform the Services have been developed in the course of providing the same or similar services to other clients. Coviu may develop further knowledge and skills while performing the Services. Coviu can use such general knowledge and skills for other clients.
2.3 Coviu will keep copies of any reports, computer programs or data that form part of the Deliverables and may reproduce and use such reports, computer programs and data for its own internal research and record keeping purposes.
2.4 Coviu will make reasonable efforts to deliver the Deliverables to you by the Delivery Date. If Coviu is unable to meet the Delivery Date then you will be told of any delay and of the revised delivery date for the affected Deliverable to be provided within a reasonable time.
3. Payment
3.1 The Client must pay Coviu the Fee (and any Additional Expenses) in accordance with the Payment Terms. If payment is to be made in full upfront then Coviu will not start performing the Services until such payment is received. If payment is to be made by instalments following receipt of invoices from Coviu and you do not pay any invoice on time then Coviu may stop performing the Services until the outstanding amount is paid. If no payments are made, Coviu may suspend the License and restrict access to or functionality of the Application.
3.2 All invoices issued by Coviu must be paid within 30 days after the invoice date. If an invoice is not paid on time then you must pay interest on the outstanding amount. Interest is calculated daily at the Westpac Bank Reference Lending Rate plus 2% per annum from the due date until the date the outstanding amount is paid.
4. Your Use of Deliverables
4.1 The Deliverables are for your use with the Application during the License Term. Coviu is not providing the Deliverables or any part of them for any other purpose.
4.2 Except to the extent expressly specified on the cover page, the Application does not include publishing or providing the Deliverables to any third party.
4.3 You use the Deliverables at your own risk.
4.4 Coviu is not responsible for the consequences of any third party using or relying on the Deliverables.
4.5 Coviu owns the Project IP. Coviu grants you a non-exclusive, royalty-free, non-transferable, non-sub licensable, worldwide licence for the specified License Term to use the Project IP as necessary to use the Deliverables for the Application. This licence commences on the date the Fee and the Additional Expenses are fully paid. If you use the Deliverables for any purpose other than the Application Coviu may cancel this licence.
4.6 Coviu owns its Background IP. You will acquire access to part of the Background IP via a Coviu online subscription which must be paid for separately and will be governed by the terms and conditions of the Application.
4.7 You will not (and must ensure that your personnel, contractors, subcontractors, officers, agents and related entities do not):
(a) act in any way which may infringe any Coviu’s IP rights in or to the Project IP, the Background IP or the Application;
(b) challenge or in any manner impugn the validity of any Coviu’s IP rights in or to the Project IP, the Background IP or the Application; or
(c) in any way encourage, assist or procure a third party to take any of the actions referred to in this clause.
5. Coviu In-kind Contributions
Coviu will contribute to the Services the Coviu In-kind Contribution as indicated on the cover page.
6. Confidential Information and Privacy
6.1 Confidential Information must be kept confidential for a period of 5 years commencing on the date you sign this Agreement.
6.2 The obligation to maintain the confidentiality of Confidential Information does not apply to information which either of us can prove was:
a) created by our own officers, employees and contractors independently of each other's Confidential Information;
b) rightfully known by either of us as a consequence of the information being disclosed from an independent source without any limitation on its use or disclosure; or
c) in the public domain (other than as a result of a breach of this Agreement).
6.3 We may each disclose the other's Confidential Information if required by law, but only to the extent of that legal requirement and after appropriate action is taken to protect the form and content of the disclosure.
6.4 Personal information disclosed to or collected by Coviu in connection with this Agreement will be handled in accordance with Coviu’s privacy policy (as amended and restated from time to time).
7. Limitation of Liability
7.1 This Agreement does not exclude or limit any guarantee, condition, warranty, right or liability implied into it by law (including the Competition and Consumer Act 2010), the exclusion of which would contravene the law or cause this Agreement to be void ('non-excludable consumer warranties'). This Agreement is at all times to be read subject to such non-excludable consumer warranties.
7.2 Coviu’s liability to you for breach of any term of the Agreement or of any non-excludable consumer warranties is limited, at Coviu’s option, to resupplying the Deliverables or re-performing the Services, or the costs of resupplying the relevant Deliverables or performing the affected part of the Services again.
7.3 Coviu will not be liable to you for any loss of data, information, revenue, profit or business opportunity or for any damage to goodwill or reputation which is suffered by you in any way arising from the Services or your use of the Deliverables.
8. Warranty Period for the Services
Where the Services include the provision of technology, then due to the inherently complex nature of technology, the Provider is unable to provide the Client with a guarantee that the Services will be free from technical errors and/or bugs (the 'Errors'). Accordingly, upon delivery of the Services, the Provider agrees to review and repair any pre-existing coding errors for the first thirty (30) days after delivery at no charge to the Client.
9. Dispute Resolution
9.1 Any dispute, controversy or claim arising out of or in connection with this Agreement, including its existence, breach, validity or termination (Dispute) must be dealt with in accordance with this clause. This clause does not prevent any of us from seeking urgent injunctive or similar interim relief from a Court.
9.2 Any of us claiming that there is a Dispute must notify each other in writing and give details of that Dispute to each other's contact person specified in the cover page.
9.3 If the Dispute is not resolved within 90 days from the date that the written notice of the Dispute is received, then the Dispute must be submitted to mediation in accordance with, and subject to, the Resolution Institute Mediation Rules. The mediation must take place in Sydney, Australia and be administered by the Resolution Institute.
9.4 If the Dispute cannot be resolved within 90 days (unless this period is extended by our mutual agreement in writing) from the date it is submitted for mediation, then the Dispute must be resolved by arbitration in accordance with the Resolution Institute Arbitration Rules 2016.
9.5 There is to be one arbitrator and the place of arbitration is Sydney, Australia. Unless we agree upon an arbitrator, either of us may request a nomination from the Chair of the Resolution Institute. All hearings will take place in private unless agreed otherwise in writing. The decision of the arbitrator (including any award as to costs) will be final and binding.
10. Termination
If either you or Coviu breach this Agreement and that breach is not remedied within 30 days after receipt of notice to remedy, then the other may terminate this Agreement by written notice.
11. General
11.1 This Agreement records our entire agreement and supersedes all earlier agreements and representations that may have been made by Coviu to you about the Services.
11.2 This Agreement may not be assigned by you without the written consent of Coviu.
11.3 The terms in this Agreement override any contrary terms contained in any invoice, purchase order or other documentation issued by you to Coviu for the Services.
11.4 This Agreement is governed by the laws of New South Wales, Australia.
11.5 If any term of this Agreement is prohibited, void or unenforceable under any applicable law, it will be severed to the extent necessary to make this Agreement valid and enforceable. The severance of a term will not affect the validity or enforceability of the remaining terms of this Agreement.