1. Parties and the Agreement
1.1 Supplier: EO BidCo Pty Ltd (ACN 659 413 822) ATF for JX2 Technology Pty Ltd Unit Trust T/A vintrace (Supplier), together with its licensors, has developed a proprietary winemaking and winery management software solution (vintrace) which it provides through its website vintrace.com (Website) ) and the vintrace mobile app (Mobile App) as hosted software as a service (Service).
1.2 Customer: Access to and use of the Service is provided by Supplier to a party which signs and returns a quote provided by Supplier (Quote) or subscribes to the Service through the Website [or Mobile App], and commences paying the applicable Fee (Customer).
1.4 Acceptance: By signing and returning the Quote (if any), subscribing through the Website [or Mobile App] or otherwise accessing and using the Service, Customer agrees to the terms of the Agreement (Acceptance).
Capitalised terms in this Agreement have the following meaning:
Acceptance is defined in clause 1.4;
Additional Fees means any fees payable by the Customer for goods and/or services that are not part of the Service.
New Module means an enhancement to the Service that adds new functionality and/or additional modules which is not present in the version of the Service licenced by the Customer at the Commencement Date.
Aggregate/Anonymous Data means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable concerning the Customer or its Authorised Users; and (ii) learnings, logs, and data regarding use of the Service;
Agreement is defined in clause 1.3;
Authorised Users means the number of user(s) permitted to use the Service as set out in the Selected Plan;
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria, Australia;
Business Hours means 9am to 5pm on a Business Day;
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
Commencement Date means the date of Acceptance;
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property Rights, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential";
Consequential Loss means any indirect, special, punitive, consequential or exemplary loss or damage (including without limitation any loss of profits, loss of business or anticipatory profits, loss of use, loss of revenue, loss of goodwill, or any interruption of business);
Contract Year means initially the 12 month period from the Commencement Date and then each subsequent 12 month period during the Term ending on an anniversary of the Commencement Date;
Consumer Price Index (CPI) means the All Groups Weighted Average of the 8 Capital Cities (excluding the Housing Index) as published by the Australian Bureau of Statistics;
CPI Increase means the annual increase in the CPI based on a comparison of the most recently published calendar quarter as compared against the same quarter in the previous year;
Customer Account means the Customer's account in respect of the Service;
Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and infrastructure;
Data means all of the information, documents and other data, including any Personal Information, provided to the Supplier by the Customer including as uploaded to the Service or the Website;
Fee means the fee set out in the Quote or if there is no Quote, as specified in the Selected Plan;
Force Majeure Event means any event which is beyond a Party's reasonable control, including fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person other than a subcontractor of a Party, but in each case, only if and to the extent that the non-performing party is without fault in causing the event, and the event, or its effect could not have been prevented by reasonable precautions;
Hosting Provider means a third party provider engaged by the Supplier to host the Service;
Intellectual Property Rights means all intellectual property rights, including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967;
Laws means applicable acts, ordinances, regulations, rules, code and by-laws of the Commonwealth of Australia and any state or territory of the Commonwealth of Australia;
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
Mobile App is defined in clause 1.1;
Party means a party to the Agreement and Parties means all of them;
Personal Information means Personal Information as defined in the Privacy Act;
Personnel means, in relation to a Party, the officers, employees, contractors (including subcontractors) and agents of that Party;
Plan means a subscription plan for the Service as detailed on the Website;
Pre-Existing Material is defined in clause 7.1;
Privacy Act means Privacy Act (Cth) 1988;
Regulatory Requirements means any compliance, controls, methods, reporting, etc. required by legislation, regulation, regulators regarding the Customer's business.
Selected Plan means the Plan selected by the Customer as specified in the Quote or the Customer Account;
Quote means a quote provided by the Supplier concerning access and use of the Service.
Service is defined in clause 1.1 and includes any New Modules;
Service Material is defined in clause 7.1(b);
Taxable Supply has the same meaning within any law imposing or relating to GST and includes the A New Tax System (Goods & Service Tax) Act 1999 (Cth) and any regulation pursuant to such act;
Term means the period commencing on the Commencement Date and continuing until the Agreement is terminated per its terms;
New Version means updates, bug fixes, minor enhancements to existing functionality of the Service and excludes New Modules; and
Website is defined in clause 1.1.
3. Service, Plans and Restrictions
3.1 Service: In consideration of the Customer paying the Fee, on and from the Commencement Date, the Supplier will provide the Customer with access to and use of the Service.
3.2 Plans: The Customer acknowledges and agrees that:
3.3 Restrictions: The Customer must not:
3.4 New Versions: The Customer acknowledges and agrees:
3.5 New Modules: The Customer acknowledges and agrees
3.6 Hosting: The Customer acknowledges and agrees that:
3.7 Suspension: The Supplier reserves the right to suspend the Customer’s access to the Service: (i) for scheduled or emergency maintenance, or (ii) if the Customer is in breach of the Agreement, including failure to pay any amounts due to the Supplier.
3.8 Compliance: By accessing and/or using the Service, the Customer acknowledges and agrees:
4. Security and Data
4.1 Security: The Customer acknowledges that:
4.2 Environment: The Customer:
4.3 Data: The Customer grants the Supplier a limited licence to copy, transmit, store and back-up or otherwise access or use the Data or make reference to any Intellectual Property Rights in the Data:
4.4 Data Permissions: The Customer represents and warrants that any and all Data supplied by the Customer or otherwise accessed by the Supplier through the provision of the Service is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable.
4.5 Back-Up: The Customer acknowledges and agrees that:
4.6 Harmful Code: The Parties will each use all reasonable commercial endeavours to avoid introducing any virus or other contaminant (including any bugs, worms, logic bombs, Trojan horses or any other self-propagating program) that may infect or cause damage to the Service or disrupt the access and use of the Service (Harmful Code) including by utilising industry standard protection mechanisms;
4.7 Restoration of Data: If any Data is corrupted or lost due to introducing Harmful Code, the Supplier's sole liability to Customer will be to restore the Customer's Data into the Service from the last recorded back-up.
4.8 Anonymous Data: The Customer acknowledges and agrees that the Supplier will have the right to generate Aggregate/Anonymous Data and the Supplier owns all Intellectual Property Rights in that Aggregate/Anonymous Data. The Supplier may use the Aggregate/Anonymous Data for any business purpose during or after the Term of this Agreement (including without limitation to develop and improve the Supplier’s other products and services and create and distribute reports and other materials). For clarity, the Supplier will only disclose any Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify the Customer or any Authorised Users, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). The Customer is not responsible for the Supplier’s use of Aggregate/Anonymous Data.
5. Price, Invoicing and Payment
5.1 Invoicing and payment:
6.1 Customer Warranties: The Customer warrants that:
7. Intellectual Property Rights
7.1 Supplier Materials:
7.2 Customer Intellectual Property Rights: The Customer grants the Supplier a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights as reasonably required for the Supplier to provide the Service to the Customer.
8. Audit and Monitoring
8.1 Right to Audit:
9. Confidential Information
9.1 Supplier Obligations: The Supplier will not and will ensure its Personnel do not disclose the Customer's Confidential Information to any third party; use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only use the Confidential Information for the purpose for which it was disclosed by the Customer and not for any other purpose.
9.2 Customer Obligations: The Customer will not and will ensure its Personnel do not disclose the Supplier's Confidential Information to any third party; use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only use the Confidential Information for the purpose for which it was disclosed or provided by the Customer to the Supplier and not for any other purpose.
9.3 Exclusions: The obligations in clauses 9.1 and 9.2 do not apply to Confidential Information that:
9.4 Enduring obligations: The obligations under this clause will survive termination of the Agreement.
10. Dispute Resolution
10.1 Disputes: If there is a dispute between the Parties concerning the Agreement (Dispute), the Parties agree to the following dispute resolution procedure:
10.2 Other actions: Any attempts made by the Parties to resolve a Dispute under this clause are without prejudice to any other rights or entitlements of the Parties under this Agreement, by law or in equity, including the right to apply for urgent interlocutory relief.
11.1 Term: The Agreement will commence on the Commencement Date and continue for an initial term as specified in the Quote or Selected Plan (Initial Term) together with any subsequent Renewal Term unless terminated earlier in accordance with the provisions of clause 12 (Term).
11.2 Renewal: At least 20 Business Days prior to the expiry of the Initial Term or any Renewal Term (as applicable), either Party may notify the other that it does not wish to renew, in which case the Agreement will expire at the end of the then current Contract Year. If a Party has not given notice pursuant to this clause, the Agreement is automatically renewed for a further 12-month period (Renewal Term).
12.1 Rights of termination: Either Party may terminate the Agreement if the other Party:
12.2 Supplier rights: The Supplier may immediately suspend the Customer's access to the Service and/or terminate the Agreement by written notice if:
12.3 Consequence of termination: On termination of the Agreement:
12.4 Accrued rights: The accrued rights, obligations and remedies of the Parties are not affected by the termination of the Agreement.
13. Limitation of Liability and Disclaimers
13.1 Australian Consumer Law: Nothing in this Agreement excludes the operation of the Australian Consumer Law (ACL). Supplier acknowledges that Customer may be entitled to certain consumer guarantees under the ACL, which cannot be excluded. If so, Supplier's liability for breach of any such consumer guarantee under is limited in the case of goods to (a) re-supply of the goods or (b) the cost of re-supply of the goods and in the case of services (a) re-supply of the services or (b) the cost of re-supply of the services.
13.2 Warranties: Subject to clause 1 and to the extent permitted by law:
13.3 Liability limitation: Subject to clause 1 and to the extent permitted by law:
14.1 The Customer is liable for and agree to indemnify, defend and hold the Supplier harmless for and against any and all Claims and Liabilities resulting directly or indirectly from:
14.2 the Customer agrees to co-operate with the Supplier (at its own expense) in handling any Claims that arise as a result of the actions in clause 1.
14.3 If a third party claims that the Service provided by the Supplier infringes its Intellectual Property Rights, then the Supplier indemnifies the Customer for all direct costs, Claims and Liabilities arising from such claim. If the quiet enjoyment of the Service is prevented, the Supplier will use all reasonable commercial efforts to secure the right for Customer to continue to use the Service or replace or modify the Service to make the Service non-infringing.
This indemnity is given subject to:
14.4 This clause will survive termination of the Agreement.
The Customer warrants that it has provided all notices to, and sought all consents from, the individuals whose Personal Information is being transferred to the Supplier, as required under this clause.
15.2 Publicity: The Customer consents to the Supplier using advertising or publicly announcing that it has undertaken work for the Customer.
15.3 Email: The Customer acknowledges that Parties are able to correspond via electronic mail. The Customer releases the Supplier from any Claim that may result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to the Customer's system or any files by a transfer.
15.4 Sales and Use Tax: If and when applicable, any sales or use tax payable on the Service will be set out in the Invoices. By accepting the Agreement, you agree to pay the Supplier an amount equivalent to the sales or use tax imposed on these charges.
15.5 Relationship of parties: The Agreement is not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
15.6 Assignment: The Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under the Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld). Provided; however, that Supplier may assign this Agreement in whole or in part as part of a solvent corporate reorganisation, consolidation, merger, or sale of substantially all of its assets.
15.7 Subcontracting: Notwithstanding clause 6, Supplier may subcontract the performance of the Services hereunder to subsidiaries or contractors, provided Supplier controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services and any acts or omissions of the subcontractor.
15.8 Severance: If any provision (or part of it) of the Agreement is held to be unenforceable or invalid in any jurisdiction, it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of the Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from the Agreement and the remaining provisions (and remaining part of the provision) are valid and enforceable.
15.9 Force Majeure: The Supplier will not be liable for any delay or failure to perform its obligations under the Agreement if such delay is due to any Force Majeure Event. If the Supplier is delayed from performing its obligations due to such a circumstance for at least two months, it may terminate the Agreement by giving the Customer five (5) Business Days' notice in writing.
15.10 Notice: Any notice required or permitted to be given by either Party to the other under the Agreement will be in writing addressed to the Party at the address in the Quote. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email transmission.
15.11 Jurisdiction & Applicable Law: This Agreement is governed by the laws of the State of Victoria. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place and the appeal courts from them.
15.12 Entire Agreement: This Agreement and any document expressly referred to in it represents the entire agreement between the Customer and the Supplier and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
15.13 This clause 15 will survive termination of the Agreement.
Shop 5, 65 Little Oxford Street
Collingwood, Victoria, 3066, Australia
P: +61 3 9015 9625
Last update: October 22 2021
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