TERMS & CONDITIONS

Services Agreement

This is the agreement we use for licensed access to our software. We encourage you to read and understand this agreement as it explains each of our responsibilities and is designed to protect you as well as us. You will be bound by this agreement by signing this agreement or, even if you have not signed the agreement, by paying the license fees after you have been provided with a copy of this agreement.

This agreement includes Schedule 1, the EULA in Annexure A and the following terms:

1. Introduction

1.1. We own all rights in or have the right to use the intellectual property in the software and documentation and warrant that your use of the software and documentation will not infringe the rights of any third party.
1.2. You have agreed to pay the licence fees to obtain a licence from us for authorised users to use the software and documentation and to obtain web-based access to the software through via our website.

2. Parties to This Agreement

2.1. When you read words “us”, “our” or “we” it means Stachs Pty Ltd ABN 31 610 616 790 and our directors, employees, agents, successors and legal assigns.
2.2. The words “you”, “user” or “your” means you, the client user of our software identified Schedule 1, and includes your employees, agents, successors and legal assigns (as applicable).
2.3. For notice purposes, contact details are those set out in Schedule 1.

3. Interpretation

3.1. Definitions
In this agreement unless expressed to the contrary:

• (a) Customisation means to change existing software or develop new software to meet your needs.
• (b) Documentation means the help files, sales presentations, marketing materials and user guides associated with the software.
• (c) Fees means the license fees set out in Schedule 1.
• (d) GST has the meaning given in A New Tax System (Goods and services Tax) Act 1999 (Cth) or any other similar tax.
• (e) Intellectual Property means all our intellectual property rights, that we own or have the right to use, whether now existing or created after the Effective Date including copyright and related rights, registered and unregistered trade and service marks, business and domain names, all rights in relation to inventions (including patents and patent applications), designs, circuit layouts, coding, confidential information, manuals, trade secrets, know how, research data, recipes, formulae, discoveries and any other intangible proprietary rights whether registered or not, arising from intellectual activity related in any way to the software, our products or services or our website.
• (f) Platform means our website, our server or other place where the software is accessible from and, where applicable, any further websites, platforms or apps we may develop after the date of this agreement that are associated with or made available for use in connection with the software.
• (g) Software means the STACHS HR Training & Compliance Management System or the STACHS Catering Management System software accessible from our platform.

4. Duration of This Agreement

4.1. This agreement commences on the start date and continues for the license period unless terminated earlier in accordance with clause 13.

5. Intellectual Property

5.1. All Intellectual Property in the software, documentation and platform remains the property of us. You do not have ownership rights to our software, documentation, platform or your dashboard.
5.2. You must not use, communicate, copy, display, distribute, modify, translate, reformat, incorporate into other works, promote, create derivative works, or in any way exploit or allow others to exploit our intellectual property in whole or in part, except as expressly authorised by us.

6. License

6.1. In accordance with the terms of this agreement, we grant to you:

• (a) A non-exclusive, non-transferable licence to use the software, documentation and platform within your organisation for the number of users shown in Schedule 1 in exchange for the License fee set out in Schedule 1 including:
  • (i) Web-based access to the software.
  • (ii) Agreed technical support and maintenance for the software.
• (b) The license is:
  • (i) Available for the number of users set out in Schedule 1 (the number of users may be increased or decreased at any point by advising in writing however the License fee will vary on a pro rata basis).
  • (ii) Is limited to use within your business and cannot be shared with third parties.

6.2. Nothing in this agreement can be construed to confer on you any rights or ownership to the software, documentation or platform by implication, estoppel or otherwise, except as expressly permitted in these terms and conditions.
6.3. We do not grant you any other right to or license to use our intellectual property.

7. Your Data

7.1. Title to and proprietary rights in your data remain your property.
7.2. You grant us a license to use, copy, transmit and store your information and data for the purposes of enabling your access to and use of the software.
7.3. While all care is taken to store your data, the software is not designed as a backup system and should not be relied on as such. We will not be responsible or liable for the theft, deletion, correction, destruction, damage, loss or failure of any stored data.
7.4. All information or data uploaded is the sole responsibility of you or the person providing the data. We are not responsible for this content and will have no liability in respect of the quality of the data, or any third-party rights in respect of that data.
7.5. If this agreement is terminated, we will hold Enterprise data for a maximum period of ninety (90) days from the date of termination. At your request, your data will be accessible by you during this period. Fees may apply for provision of data by request. At the end of the ninety (90) day period, your stored data will be permanently deleted from our platform.

8. Enterprise Responsibilities

8.1. You warrant that you have the right or license to use all data you upload using the software. You agree to indemnify us against any loss or damage (including consequential loss) that may result from any information uploaded to the platform, including but not limited to privacy breach, copyright breach or other intellectual property infringement.
8.2. You agree:

• (a) To be bound by and comply, and ensure that users of the software in your control (users) comply, with the EULA (including updates) associated with the software and the terms and conditions of the platform for web-based access (including updates). A copy of the EULA is attached to this agreement at Annexure A;
• (b) to pay subscriptions, invoices and fees owing to us in full and on time;
• (c) to complete, at your cost, reasonable training in the use of the software and platform, as required;
• (d) to provide true and correct details when setting up each user account;
• (e) to accurately disclose at the end of each month the number of users who had username/password access to use the software;
• (f) to keep all username and passwords secure and confidential and not to share the access details with anyone other than the person entitled to use them;
• (g) to educate employees on the correct use of the software and monitor for appropriate usage;
• (h) to ensure that a user’s username and password is de-activated within 7 days of their employment/engagement being terminated by you;
• (i) to immediately notify us of any unauthorized use of passwords or other breach of security;
• (j) to install updates of the software if we provide updates (although we are not obliged to do so);
• (k) not to rent, lease, sell, transfer, redistribute, make available or sublicense your access to the software to any third party;
• (l) to only use the software for lawful purposes, in accordance with this agreement and any directions given by us from time to time;
• (m) not to use the platform or software to send spam or other unsolicited messages;
• (n) not to access or attempt to access the administrative interface of the software by any means other than the interface provided, unless we have entered into a separate agreement with you;
• (o) not to use our software or website in a manner that could bring disrepute to our business or in a manner for which it is not intended;
• (p) not to introduce viruses, malware or other damaging things or code into the software;
• (q) not to use our software in a manner that could damage, disable, overburden, or impair our software or interfere with any party’s use and enjoyment of our software; and
• (r) not to copy (except as expressly permitted by this license) decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of our software or documentation, including any updates, or any parts of the software, or the servers or networks which are connected to the platform. Any attempt to do so is a violation of our rights.

If you breach your responsibilities or other parts of this agreement, we may terminate your access and you may be subject to prosecution and damages.

9. Security, Accessibility and Integrations

9.1. Any data stored in or processed through the platform is stored or processed in Australia where possible.
9.2. Continuous access to the platform is dependent on third party services. As a result, the platform may be inaccessible from time to time.
9.3. We cannot guarantee that the platform or software will always be error free. We will not be liable for any periods that the platform is not functioning or is malfunctioning.
9.4. We are committed to maintaining the security of our platform however, no system can be 100% secure, so we do not provide any guarantee of the security of the platform or your data.
9.5. Where our software or platform integrates with your operating system or website, we accept no liability for the integration process, the pushing of information (for example, if your system does not accept information due to a malfunction, our system will continue to attempt to push the information across) or the loss of information if integration is unsuccessful. Where we make application program interfaces (API’s) available to you, you accept the API’s on an ‘as is’ where is basis without any warranty of any kind. You accept the API’s on this basis and accept all liability for their use.
9.6. We disclaim all liability for any computer virus or technological problems that were not intentionally caused by us or are beyond our control. You are encouraged to install and maintain up-to-date security software on your systems. We do not warrant that the software or platform are free from viruses, malware or similar damaging code.

10. Fees and Payment

10.1. Unless otherwise indicated, all fees quoted are expressed in Australian dollars (AUD), exclusive of GST. You agree to pay to us an amount attributable to GST in addition to any amount payable.
10.2. The licence fee is set out in the Schedule 1.
10.3. Licence fees are payable in advance at the frequency shown in schedule 1. Our payment terms are also set out in the schedule.
10.4. Licence fees are calculated based on your expected number of users for the month. If you exceed the expected number of users, you will be issued a top-up invoice at the end of the month for the additional users.
10.5. You agree we may suspend your access to the software if you do not make agreed or invoiced payments when due. We will not be liable for any loss you suffer due to any suspension action taken.
10.6. You agree to pay any applicable surcharge on payments made by credit card.
10.7. Interest will be charged on any overdue payment, accruing daily from the date when payment becomes due, until the date of payment, at a rate of 8% per annum (compounding monthly).
10.8. If any payment is dishonoured for any reason you agree to pay any dishonour fees incurred by us.
10.9. If we have to pursue a debt, you agree to pay any costs and disbursements incurred by us in pursuing the debt (including legal costs on a solicitor and own client basis and collection agency costs).

11. Termination

11.1. Your licence is a ‘no lock-in’ contract. You may give written notice to end this agreement at any time by email, which we will confirm in writing.
11.2. Your notice to terminate will take effect thirty (30) days after the end of your then current billing period. You are liable to pay for access to the software up to the date of termination and will continue to have access to the software until the date of termination.
11.3. We may terminate this agreement immediately, without notice in the following circumstances:

• (a) You sell your business or assign your interest in this agreement without our consent;
• (b) You commit a serious breach of this agreement;
• (c) You engage in conduct that is detrimental to, or could be seen to be detrimental to our reputation;
• (d) You fail to pay a validly issued invoice issued by us within 45 days of the due date.

12. Consequences of Termination

12.1. Upon termination:

• (a) any outstanding license fees become immediately due and payable;
• (b) You will no longer have access to the software;
• (c) We will hold your data for a maximum period of ninety (90) days from the date of termination. Data will be accessible by request during this period. Fees may apply for provision of data by request.

12.2. Termination by either party is without prejudice to any accrued rights or remedies of that party and will not release the other party from liability in respect of any breach or non-performance of any obligation.

13. Confidentiality

13.1. All confidential information disclosed by either party must be kept confidential by the other party and must only be used for purposes for which that information was disclosed.
13.2 Each party agrees to keep that information confidential unless:

• (a) that confidential information is transferred to the public domain through no fault or action of the party obliged to keep it confidential;
• (b) either party gives the other party written authority to release it; or
• (c) either party is required by a legal process to disclose that information and has provided notice to the other party of that obligation.

13.3. Despite any other provision of this agreement or any non-disclosure agreement between the parties, either pre-existing or agreed upon in future, each party is entitled to:

• (a) disclose relevant confidential information to associated entities, staff, contractors and other third parties who are involved in providing services to the client, to the extent they require that information to carry out the services;
• (b) disclose information relating to taxation and research and development incentives to relevant authorities; and
• (c) disclose any information required by law.

13.4. Upon the termination of this agreement, either party may demand, and the other party agrees to return any confidential information that is in the possession or control of the other party, including destroying all electronic files, applications and software stored on the first party’s equipment.
13.5. The obligation to maintain confidentiality continues after the termination of this agreement.

14. Privacy

14.1. Each party undertakes to protect the security of any personal information coming into its possession as a result of this agreement, and to immediately notify the other party in the event of a breach.
14.2. With regard to your data, we are the data processor of that information, and you are the data controller.

15. Indemnity

15.1 To the extent that our negligent act or omission has not contributed to the loss, you agree to indemnify and defend us from any claims, damages, liabilities, costs, or expenses (including without limitation court costs, collection costs, and reasonable legal fees) related to:

• (a) Any privacy beach, copyright breach or intellectual property infringement claims by third parties that relates to your data;
• (b) Your use of our software;
• (c) Your breach of this agreement.

16. Limitation of Liability

16.1. Either party's liability for any claim relating to this agreement will be reduced to the extent to which the other party’s negligence contributed to the damage relating to the claim.
16.2. We make no warranties or representations about the suitability, reliability, availability, timeliness or accuracy of anything contained on our website or produced by our software for any purpose, to the maximum extent permitted by applicable law, anything contained on our software is provided "as is" without warranty or condition of any kind.
16.3. To the fullest extent permitted by law, we:

• (a) exclude all liability for damage or loss caused by loss or theft of data, security breach, lost profits, revenue or opportunities, integration of software or use of API’s, downtime or interruption of business or non-compliance by you with any Act or any consequential or incidental damages suffered by you or any other person or entity resulting from any claim or cause based on breach of warranty, breach of contract, negligence or any other law, even if we should have known of the possibility of the damage or loss being suffered;
• (b) exclude all representations, warranties, or terms (whether express or implied) other than those expressly set out in this agreement.

16.4. Where warranties are implied by law, our liability will be limited in respect of any claim to, at our option, supplying the services and or the license again, or promptly remedying the fault in the services or the software.
16.5. The parties agree that our total aggregate liability for all claims relating to this agreement is limited to the fees actually received by us from you in the 6 (six) months immediately preceding the date of claim.
16.6. This limitation of liability applies to the fullest extent permitted by law and survives any termination or expiration of this agreement or your use of our software.

17. Force Majeure

17.1. Other than for payments due, neither party will be liable for delay or failure to perform its obligations under this agreement if that delay or failure is due to a Force Majeure Event.
17.2. Other than for payments due, if a delay or failure of a party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that party's obligations will be suspended.
17.3. Other than for payments due, if a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 60 days, either party may immediately terminate the agreement on providing notice in writing to the other party.
17.4. If a delay or failure due to a Force Majeure Event causes a suspension or termination of this agreement, you agree that payment of all services or work completed up to the date of suspension or termination are still payable by you.
17.5. ‘Force Majeure Event’ means an event that is beyond a party’s control, including but not limited to war, pandemic, fire, earthquake, labour dispute, act of God, unavailability or material change in any third party technologies or platforms (or the rules governing such technologies or platforms) or any change to or new local, state, federal, national or international law or governmental order, any of which materially impacts a party’s ability to complete their obligations under this agreement.

18. Notices

18.1. A communication required by this agreement, by a party to another, must be in writing and may be given to the other party by being:

• (a) delivered personally; or
• (b) posted by express mail to the address specified in this agreement, or as later notified by that party; or
• (c) sent by email or other electronic means to a previously notified electronic address.

18.2. Communications delivered by mail are deemed received three business days after posting. Communications sent via electronic means are deemed received the same day if sent prior to 4:00pm during business hours in Queensland, or otherwise the next business day.

19. Promotion

19.1. If you provide us with a testimonial, you consent to our use of your name, business name, logo and testimonial provided by you for the ongoing promotion or management of our business.

20. General Provisions

20.1. Relationship - The relationship between the parties is one of independent contractors. This agreement does not create any legal relationship other than the contractual relationship formed under the provisions of this agreement.
20.2. Costs - Each party must pay its own costs in relation to the negotiation, preparation, execution and performance of its obligations under this agreement.
20.3. No Waiver - Any time or other indulgence granted by either party will not in any way amount to a waiver of any of that party’s rights or remedies under this agreement.
20.4. Governing Law - This agreement is governed by the laws of Queensland and each party agrees to be subject to the jurisdiction of the courts of Queensland in the event of a serious dispute.
20.5. Severability - If any of the provisions of this agreement are determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed replaced by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the terms and conditions will continue in effect.
20.6. Entire agreement – this agreement forms the entire agreement of the parties for the assignment of the Intellectual Property and supersedes all prior understandings, negotiations, agreements, written or oral, express or implied.

Annexure A – End User Licence Agreement

1. Parties to This Agreement<

1.1. This is an agreement between you and STACHS relating to the use of STACHS’s web based ‘STACHS HR Training & Compliance Management System’ or the ‘STACHS Catering Management System’ (‘software’).
1.2 When you read words “STACHS”, “us”, “our” or “we” it means STACHS Pty Ltd ABN 31 610 616 790 and our directors, employees, agents, successors, and legal assigns.
1.3 The words “you”, “user” or “your” means you, the user of our software and your employees, agents, successors and legal assigns (as applicable).

2. What We Do

2.1. STACHS is the owner of the software and develops and provides a wide range of unique web based and desktop database business solutions.
2.2 STACHS reserves the right to make changes to the software or provide updates at any time, although is not obliged to do so.

3. License To Use STACHS

3.1. Once you have registered with us and paid relevant fees, we grant you the right to use the software for the business purposes of the business you registered with us for the period for which you have a paid subscription.
3.2. You do not have any ownership rights to the STACHS software or platform.
3.3. Your right to use our software is not exclusive, and we will allow others to use the software.
3.4. The license granted to you is not transferrable to anyone else and is limited by the terms of this agreement.

4. Your Responsibilities

4.1. When using our software, you agree:

• (a) to provide true and correct details when you set up your account;
• (b) to accurately disclose the number of persons who will be using the software;
• (c) to keep your contact details up to date;
• (d) to pay subscriptions, invoices and fees owing to us in full and on time;
• (e) to keep all username and passwords secure and confidential and not to share the access details with anyone other than the person entitled to use them;
• (f) to ensure that a user’s username and password is de-activated within 7 days of their employment being terminated by you and email our customer support to update the subscription details;
• (g) to immediately notify us of any unauthorized use of your passwords or other breach of security;
• (h) to install updates of the software if we provide updates (although we are not obliged to do so);
• (i) not to rent, lease, sell, transfer, redistribute, make available or sublicense your access to the STACHS platform or software to any third party;
• (j) to only use STACHS software for lawful purposes, in accordance with this agreement and any directions given by STACHS from time to time;
• (k) not to use the STACHS platform to send spam or other unsolicited messages;
• (l) not to access or attempt to access the administrative interface of STACHS by any means other than the interface provided, unless we have entered into a separate agreement with you;
• (m) not to use our software, website or the STACHS platform in a manner that could bring STACHS or its brand into disrepute or in a manner for which it is not intended;
• (n) not to introduce viruses, malware or other damaging things or code into the software;
• (o) not to use our software in a manner that could damage, disable, overburden, or impair our software or interfere with any party’s use and enjoyment of our software; and
• (p) not to copy (except as expressly permitted by this license) decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of STACHS materials, any updates, or any parts of the software, or the servers or networks which are connected to STACHS. Any attempt to do so is a violation of the rights of STACHS.

If you breach your responsibilities or other parts of this agreement, we may terminate your access and you may be subject to prosecution and damages.

5. Termination

5.1. This license is effective until cancelled by you or STACHS. Once cancelled the rights given to you under this license will terminate automatically.
5.2. This license will automatically come to an end if you or we terminate a services agreement we have entered into with you for use of the software.
5.3. We may also cancel, suspend, remove, or disable your access to the software or cancel this license:

• (a) By giving you 14 days’ notice if you are in arrears of payments or subscriptions payable to us; or
• (b) Immediately with no notice if we believe that you have failed to comply with this agreement.

6. Copyright

6.1. Title to and all intellectual property rights in our software, website and any documentation relating to those services remain the property of STACHS.
6.2. You must not use, communicate, copy, display, distribute, modify, translate, reformat, incorporate into advertisements or other works, promote, create derivative works, or in any way exploit or allow others to exploit any of the content of our software in whole or in part, except as expressly authorised by us.
6.3. We do not grant you any other right to or license to use our intellectual property.

7. Third Party Intellectual Property

7.1. You warrant that you have the right or license to use any and all information, including customer personal information, uploaded to the software. You agree to indemnify us against any loss or damage (including consequential loss) that may result from any information uploaded to the software, including but not limited to privacy breach (under Australian or international privacy laws), copyright breach or other intellectual property infringement.

8. Your Data

8.1. Title to and all intellectual property rights in your data or your customers’ data remains your property. Access to that data is dependent on your adherence to this agreement and payment of any associated fees or amounts payable to us in full and on time.
8.2. You grant STACHS a license to use, copy, transmit and store your information and data for the purposes of enabling your access to the software.
8.3. While all care is taken to store your data, the software is not designed as a backup system and should not be relied on as such. We will not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure of any stored data.
8.4. All information or data uploaded is the sole responsibility of you or the person providing the data. We are not responsible for this content and will have no liability in respect of the quality of the data, or any third-party rights in respect of that data.
8.5. If this agreement is terminated, we will hold a copy of your data for a period of 30 days. You may request a copy of your data within this period (fees may apply for this request) and then your data will be permanently deleted from our working system.

9. Security and Accessibility

9.1. We take commercially reasonable steps to maintain the security of our software however, we do not guarantee the security of our software, systems, records, or your data.
9.2. Continuous access to the software is dependent on third party services. As a result, the software may be inaccessible from time to time.
9.3. We disclaim all liability for any computer virus or technological problems that was not intentionally caused by us or is beyond our reasonable control. You are encouraged to install and maintain up-to-date security software on your computer. We do not warrant that our software is free from viruses, malware, or similar damaging code.
9.4. We cannot guarantee that the system remains error free at all times. We will not be liable for any periods that the system is not functioning or is malfunctioning.
9.5. You are responsible for ensuring that material damaging to our system is not uploaded to STACHS. If any data uploaded by you to our system incorporates a computer virus or malware or creates technological problems in our system, you will be liable for all costs incurred in rectifying all issues arising out of that upload.

10. Disclaimer

10.1. While we aim for completeness and functionality, we make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in our software for any purpose nor that the software will function exactly as you expect. To the maximum extent permitted by applicable law, anything contained on our software is provided "as is" without warranty or condition of any kind.
10.2. This disclaimer applies to the fullest extent permitted by law and survives any termination or expiration of this agreement or your use of our software or the services found on our software.

11. Limitation of Liability

11.1. We will not be liable to you or any other person or entity for any damages whatsoever arising as a result of your use of the software, our website, or the STACHS platform in any way, subject to the requirements of Australian Consumer Law.
11.2. Where warranties are implied by law, you acknowledge and agree that the total aggregate liability to us is limited at our discretion to the provision of those services again, or to a refund equal to the total amount paid by you for 6 months access to the particular services that are the subject of the cause of action, even if those services were provided to you without cost.
11.3. This limitation of liability applies to the fullest extent permitted by law and survives any termination or expiration of this agreement or your use of our software.

12. Indemnity

12.1. To the extent that our negligent act or omission has not contributed to the loss, you agree to indemnify and defend STACHS from any claims, damages, liabilities, costs, or expenses (including without limitation court costs, collection costs, and reasonable legal fees) related to:

• (a) Any privacy breach, copyright breach or intellectual property infringement claims by third parties;
• (b) Your use of our software;
• (c) Your breach of this agreement.

13. Relationship

13.1. No joint venture, partnership, employment, or agency relationship exists between you and STACHS because of this agreement or your use of our software.

14. Applicable Law

14.1. This agreement is governed by the laws of Queensland and Australia. You agree to be subject to the jurisdiction of the courts of Queensland if there was a serious dispute between you and us.
14.2 Use of our software is not authorized in any jurisdiction that does not give effect to all provisions of these terms of use, including without limitation this paragraph. If you are resident in a jurisdiction where the use of our software is unauthorised, it is your responsibility to stop using our software.

15. General

15.1. You may provide notice to us by email addressed to stachsbusinesssolutions@outlook.com. We may provide notice to you via email, in software notification or other electronic means.
15.2. If any of the provisions of this agreement are determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed replaced by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the terms and conditions will continue in effect.
15.3. Waiver - Any time or other indulgence granted by either party will not in any way amount to a waiver of any of that party’s rights or remedies under this agreement

End.