Technology Services Agreement


This agreement is between Tradies Software Pty Ltd (ABN: 80 615 830 165) trading as i4Tradies hereafter referred to as i4T and the Trades Company (hereafter referred to as OptinTrades) which opted to use Services prescribed in this agreement.

1. DEFINITIONS AND INTERPRETATION

Definitions

Acceptance Date means the date upon which the Software is accepted as provided by clause 6.

Account means the credit card provided by the OptinTrades from which i4T is authorised to deduct payments arising under this Agreement;

Active means allowing Customers to contact and deal with the OptinTrades through the Customer App;

Agreement means this Agreement and the Schedule hereto;

Approved Devices means the devices i4T has authorised the Software and the Provider App to be operated on as detailed in the Specifications;

Commencement Date means the date specified in the Schedule after the trial period of the Software for the period of 2 weeks;

Confidential Information means information that is by its nature confidential but does not include:

  • (a) information already known to the receiving party at the time of disclosure by the other party; or
  • (b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;

Customer means an end Customer (an individual or an entity) who seeks to request Trade Services from the OptinTrades;

Customer App means the i4T licenced application for iOS, Windows and Android which is used by Customer to contact and obtain the services of the OptinTrades.

Customer Experience Management Suite of Software means the software suite comprising the Software, the Provider App and the Customer App;

Direct Website Request means a specific task is created by OptinTrades directly using the Software

GST means:

  • (a) the same as in the GST Law;
  • (b) any other goods and services tax, or any tax applying to this agreement in a similar way; and
  • (c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law means the same as "GST law" in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

i4T Business means the Software licenced by i4T to the OptinTrades pursuant to the terms of this Agreement;

i4T Employee means the Provider App licenced by i4T to the OptinTrades pursuant to the terms of this Agreement;

i4T Consumer means the Customer App licenced by i4T to the Customer;

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

Licence means the licence of Software and the Provider App granted pursuant to this Agreement;

Licence Fee means the fee may be payable by the OptinTrades to i4T for the use and access to the Software as specified in the Schedule;

Manual of Specifications means the online documents which contains technical information relating to the Software and forms part of this Agreement;

Media means the media on which the Software is recorded or printed;

Moral Right means:

  • (a) a right of attribution of authorship;
  • (b) a right not to have authorship falsely attributed;
  • (c) a right of integrity of authorship; or
  • (c) a right of a similar nature;

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement;

New Release means software which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the Software;

Provider App means the i4T Employee application for iOS, Windows and Android which allows employees of the OptinTrades to manage jobs assigned to them by the OptinTrades;

Provider ID means Customer ID issued by i4T to the OptinTrades to enable it access to the Software and the Provider App.;

Request Fee means the fee payable by the OptinTrades to I4T upon issue of a request as specified in the Schedule;

Schedule means the schedule to this agreement;

SMS Notification Credits means the credits pre-purchased by the OptinTrades which can be used by the OptinTrades to request I4T to provide SMS notifications to the Customers.

Software means the i4T Business web or mobile application based on Desktop, iOS, Windows and Android which allows Customer to manage their business processes provide by i4T in conjunction with i4T Employees and other i4T Licenced branded Customer App;

Specifications means the specification set out in the Manual of Specifications;

Tradesperson means a worker skilled and specialising in a particular trade or craft requiring skill.

Trade Services means the services provided by an OptinTrades in the ordinary course of business via the Customer App or 3rd party websites/software platforms link to i4T or directly entered into the Software.

Transaction Fee means the fee payable by the OptinTrades to I4T upon issue of an invoice as specified in the Schedule;

Update means software which has been produced primarily to overcome defects in the licensed Software.

Interpretation Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this agreement.

INTRODUCTION

2.1 This Agreement constitutes a legal agreement between i4T and the OptinTrades.

2.2 i4T is the exclusive licence distributor of the Software and the Provider App.

2.3 The Software enables the OptinTrades (once authorised by i4T) to seek, receive and fulfil requests for trade services from Customers using the Customer App.

2.4 i4T wishes to grant, and the OptinTrades wishes to take, a licence to use the Software and the Provider App on the terms of this Agreement for the purposes of accessing and using the Software to provide services to the Customers.

2.5 The Software, the Provider App and the Customer App forms part of the Customer Experience Management Suite of Software that seeks to link providers of Trade Services and the Customers.

2.6 Pursuant to this Agreement, i4T agrees to licence to the OptinTrades the Software and the Provider App.

2.7 The Software is a web based application that operates on Windows and Mac OS X operating systems.

2.8 The Provider App is a mobile application that operates on Apple's iOS, Windows and Android mobile platforms. The Provider App allows authorised employees of the OptinTrades to manage jobs assigned to them by the OptinTrades.

2.9 Pursuant to an agreement as between i4T and the Customer, i4T will licence the Customer to download and have access to the Customer App.

2.10 The Customer App is a free mobile application that operates on Apple's iOS, Windows and Android mobile platforms. It is used by the Customers to communicate and obtain Trade Services from OptinTrades.

3. ACKNOWLEDGEMENTS

3.1 The OptinTrades acknowledges and agrees that:

  • (a) ) i4T is a provider software technology and does not provide any Trade Services;
  • (b) the provision of Trade Services by the OptinTrades to the Customers creates a direct business relationship between the OptinTrades and the Customer, to which i4T is not a party;
  • (c) i4T does not, at any time, direct or control the OptinTrades generally or in its performance under this Agreement specifically, including in connection with the OptinTrades’ provision of Trade Services to the Customers, the OptinTrades’ acts or omissions, its operations and its insurance and licencing;
  • (d) i4T is not responsible or liable for the actions or inactions of the OptinTrades and/or the Customers;
  • (e) the OptinTrades is solely responsible for taking such precautions as may be reasonable and proper regarding the services provided to the Customers and any acts or omissions of the Customers; and
  • (f) the OptinTrades will provide its Trade Services through the Customer Experience Management Suite of Software for the duration of the Agreement.

4. LICENCE

4.1 As and from the Commencement Date, i4T grants a non-transferrable, non-exclusive licence to the OptinTrades to use the Software and the Provider App under the terms of this Agreement.

4.2 i4T warrants that it has the authority to grant the Licence.

4.3 The Licence shall be non-exclusive to the OptinTrades.

4.4 The Software and the Provider App must only be used on Approved Devices unless the consent of i4T is obtained to use the Software and/or the Provider App on alternative equipment. Such consent shall not be unreasonably withheld.

4.5 I4T is not required to provide Updates or New Releases pursuant to this Agreement. Where Updates and/or New Releases are provided by I4T, the OptinTrades must install the Updates and/or New Releases.

4.6 The OptinTrades will not create or permit to exist a security interest over the Software, the Provider App or the Specifications or in any modifications to, or enhancements, Updates or New Releases of, the Software, Provider App or the Specifications. For the purposes of the foregoing, "security interest" means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors.

4.7 The OptinTrades shall not, and shall not allow any other party to:

  • (a) license, sublicense, share, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Software and/or the Provider App in any way;
  • (b) modify or make derivative works based upon the Software and/or the Provider App;
  • (c) improperly use the Software and/or the Provider App; and
  • (d) reverse engineer, decompile, modify, or disassemble the Software and/or the Provider App, except as allowed under applicable law.

4.8 The OptinTrades shall not, and shall not allow any other party to, access or use the Software and/or the Provider App to:

  • (a) design or develop a competitive or substantially similar product or service;
  • (b) copy or extract any features, functionality, or content thereof;
  • (c) launch or cause to be launched on or in connection with the software and/or the Provider App, an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Software and/or the Provider App; and
  • (d) attempt to gain unauthorised access to the Software and/or the Provider App, or its related systems or networks

4.9 The parties will not conduct themselves contrary to the intentions arising from this Agreement and will conduct themselves in good faith.

4.10 This Agreement incorporates the Specifications.

5. ACCESS

5.1 Upon entering into this Agreement, i4T will deliver access to the OptinTrades the Software and the Provider App.

5.2 Upon provision of the OptinTrades Information, as set out in the Schedule, i4T will issue the OptinTrades with a Provider ID to enable it to access and use the Software and the Provider App on Approved Devices in accordance with the terms of this Agreement.

5.3 The OptinTrades will immediately notify I4T of any actual or suspected breach or improper use or disclosure of the Provider ID, the Software and/or the Provider App.

5.4 Upon compliance by the OptinTrades with the terms of this Agreement and the Specifications, I4T will make the OptinTrades Active.

5.5 Upon becoming Active, the OptinTrades will be made available to Customers.

5.6 I4T is not required to install the Provider App or to provide any services or support in respect of installation of the Provider App to OptinTrades under this Agreement.

6. THE SOFTWARE AND PROVIDER APP

6.1 The Software and the Provider App will be deemed accepted on the Commencement Date.

6.2 If, during a period of 10 working days following the Commencement Date, the Software and/or the Provider App fails to perform in accordance with the Specifications, I4T will be given the opportunity to rectify the defect or replace the Provider App within a further period of 14 days.

6.3 If the Software and/or the Provider App fails to perform in accordance with the Specifications during the 14-day period referred to in subclause 6.2, the OptinTrades may, at its option, grant a further period during which satisfactory performance is to be achieved or alternatively terminate this Agreement.

6.4 As and from the Commencement Date, the OptinTrades will be responsible for ensuring that the Software and the Provider App is used in accordance with the Specifications.

7. LICENCE, REQUEST, TRANSACTION AND SMS FEE

7.1 In consideration of I4T licencing to the OptinTrades the Software and the Provider App, the OptinTrades agrees to pay to I4T the Licence Fee, the Request Fee and the Transaction Fee on the terms as set out in this Agreement for the duration of this Agreement. Refer to Schedule – Commencement date, fees at the end of this agreement.

7.2 The OptinTrades will pay to I4T the Licence Fee, on a monthly basis, with payment being automatically debited from the Account on the 7th day of each month, or as otherwise agreed between I4T and the OptinTrades in writing.

7.3 I4T may, at its sole discretion, agree to waive the Licence Fee for the duration of this Agreement.

7.4 Immediately upon the OptinTrades generating a quote for the Customer, the OptinTrades irrevocably agrees for an amount equivalent to the Request Fee being automatically debited from the Account.

7.5 Immediately upon the OptinTrades completing the job irrespective if it is invoiced or not, the OptinTrades irrevocably agrees for an amount equivalent to the Transaction Fee being automatically debited from the Account.

7.6 The Request Fee is payable by the OptinTrades to I4T regardless of whether or not the quote generated is issued to the Customer and/or the Customer proceeds with engaging the OptinTrades.

7.7 The Transaction Fee is payable by the OptinTrades to I4T regardless of whether or not the invoice generated is issued to the Customer and/or is paid.

7.8 Prior to the OptinTrades becoming Active, the OptinTrades will provide to I4T its credit card details, from which I4T is authorised to automatically debit payments arising under this Agreement.

7.9 The OptinTrades authorises I4T to automatically debit payments arising under this Agreement from the Account.

7.10 I4T reserves the right to resubmit for collection any debit arising under this Agreement that is returned for insufficient or uncollected funds.

7.11 As an additional service, I4T will provide the OptinTrades:

  • (a) a system for the delivery of receipts to the Customers for the Trade Services rendered, at no additional costs; and
  • (b) subject to this Agreement, a system for the delivery of SMS notifications to the Customers.

7.12 The OptinTrades may pre-purchase from I4T, SMS Notification Credits, which can be used by the OptinTrades to request I4T to provide SMS notifications to the Customers.

7.13 I4T will only send to the Customer a SMS notification where the OptinTrades has sufficient SMS Notification Credits.

7.14 The OptinTrades acknowledges and agrees that it will be responsible for all of its own tax obligations arising from the provision of Trade Services it to the Customers.

8. RATINGS

8.1 The OptinTrades acknowledges and agrees that after the Trade Services have been provided, the Customers may be prompted by the Customer App to provide a rating of the OptinTrades ("Ratings") and, optionally, to provide comments or feedback about the OptinTrades (“Reviews”).

8.2 I4T reserves the right to use, share and display the Ratings and Reviews in any manner without the OptinTrades’ approval.

8.3 If the OptinTrades believes the ratings and/or the Reviews are not true, incorrect and/or defamatory, the OptinTrades may report the Ratings and/or the Reviews to I4T. I4T may, at its absolute discretion, remove part, or the whole, of any Review.

8.4 The OptinTrades agrees that it will maintain a high standard of service and provide the Trade Services in a proper and workman like manner.

8.5 If the OptinTrades regularly receives low Ratings, or provides the Trade Services contrary to clause 8.4 above, I4T may, at its sole discretion, immediately terminate or suspend this Agreement.

8.6 I4T takes no responsibility and assumes no liability for any Ratings and/or Reviews posted, stored or uploaded by the Customers or any third party. I4T is not liable for any mistakes, defamation, omissions or falsehoods contained in the Reviews.

8.7 I4T is not liable for any statements, representations Ratings or Reviews provided by Customers in any public forum, personal home page or other interactive area.

8.8 The OptinTrades acknowledges that I4T desires that Customers have access to highquality services.

8.9 The OptinTrades acknowledges and agrees that it will not, either directly or indirectly, seek to manipulate and/or unfairly influence the Ratings and/or the Reviews.

8.10 The OptinTrades acknowledges and agrees that it will not seek to post Ratings and/or Reviews of its own work.

9. INSURANCE AND LICENCES TO OPERATE

9.1 Prior to undertaking any Trade Services, the OptinTrades warrants that it, and its employees:

  • (a) are qualified to carry out the Trade Services, including the Works, as defined in the Schedule;
  • (b) will not provide or carry out any other works, other than the Works, to the Customers;
  • (c) are fully licenced or registered as required by the relevant law in the State or Territory in which the Works and Trade Services are being carried out, to carry out the Trade Services, including the Works; and
  • (d) are fully insured, as required by the relevant law in the State or Territory in which the Trade Services, including the Works, are being carried out, to carry out the Trade Services, including the Works.

9.2 The OptinTrades agrees that it, and its employees must maintain, during the term of this Agreement, the required qualifications, insurances and licences referred to above.

9.3 Prior to the OptinTrades becoming Active, and on each annual anniversary of the Commencement Date, the OptinTrades will provide to I4T written proof of its qualifications, insurances and licences.

9.4 The OptinTrades must immediately provide I4T with written notice of change, cancellation or lapsing of any qualification, insurance or licence

10. SPECIFICATIONS

10.1 I4T will deliver a copy of the Specifications to the OptinTrades within 7 days of the Commencement Date so as to enable the OptinTrades to operate the Software and the Provider App.

10.2 I4T must inform the OptinTrades from time to time of any amendments to the Specifications which may become necessary.

11. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

(a) I4T retains exclusive licence distribution rights of the Software and the Provider App whether in its original form or as modified by the OptinTrades during the term of this Agreement.

(b) All Intellectual Property Rights in the Software and the Provider App are retained by I4T as if it was the owner, developer and/or creator of the Software and Provider App.

(c) The OptinTrades acknowledges I4T's interest in the Specifications. The OptinTrades will not copy the Specifications except where necessary to enable proper use of the Software and/or the Provider App.

(d) i4Tradies and its associated marks are the registered trademark of I4T.

12. MODIFICATIONS

(12.1) The OptinTrades must not modify the whole or any part of the Software and the Provider App or combine or incorporate the whole or any part of the Software and/or the Provider App in any other program or system without the prior consent in writing of I4T.

(12.2) If the Software and/or the Provider App is modified in accordance with subclause 12.1, the modifications must, unless I4T directs otherwise, be made in accordance with a written proposal submitted by the OptinTrades to I4T.

(12.3) The OptinTrades shall fully indemnify and hold harmless I4T against any liability incurred if the modifications infringe the Intellectual Property Rights of a third person.

(12.4) The Software and/or the Provider App, as modified, remains the property of I4T.

(12.5) This agreement shall continue to apply to the Software and the Provider App as modified.

13. SECURITY

(13.1) The OptinTrades will be responsible for protecting the Software, the Provider App, the Specifications and the Provider ID at all times from unauthorised access, use or damage

14. RISK

(14.1) Risk of loss or damage to the Software, the Provider App and the Specifications will pass to the OptinTrades as and from the Commencement Date.

15. I4T'S WARRANTIES

(15.1) I4T warrants that the Software and the Provider App will perform substantially in accordance with the Specifications.

(15.2) If, within 90 days after the Commencement Date, the OptinTrades notifies I4T in writing of:

  • (a) the fact that the Software and/or the Provider App is not performing substantially in accordance with the Specifications; and
  • (b) the alleged defects or errors, with sufficient particularity to enable I4T to remedy the defects or errors, I4T must at its own expense, commence to examine the Software and/or the Provider App within three working days and, as soon as practicable thereafter, rectify the defect or replace the Software and/or the Provider App

(15.3) The warranty contained in subclause 15.2:

  • (a) is subject to the OptinTrades having fully complied with its obligations under this Agreement;
  • (b) is not a warranty that the results obtained from the Software and/or the Provider App will be in accordance with the OptinTrades’ expectations; and
  • (c) does not operate where the substantial non-performance arises in any respect from the nature or operation of the equipment on which the Software and/or the Provider App is used or the use of any materials or software not provided by I4T.

16. OPTINTRADES' WARRANTIES

(16.1) The OptinTrades warrants that:

  • (a) it has full power and authority to enter into this Agreement and perform the obligations contained therein;
  • (b) it has not entered into, and during the term will not enter into, any agreement that would prevent the OptinTrades from complying with this Agreement; and
  • (c) the OptinTrades Information provided by the OptinTrades is true and correct.

(16.2) The OptinTrades warrants that it and its employees will:

  • (a) comply with all permits, licenses, registrations and other governmental authorisations necessary to provide the Trade Services;
  • (b) will keep private and secure the Provider ID; and
  • (c) will not allow any unauthorised access to the Software and/or the Provider App.

17. INDEMNITY AND LIABILITY

(17.1) I4T shall not be liable to the Customers for any delay, damage or injury caused by the OptinTrades providing services to the Customers.

(17.2) The OptinTrades will at all times indemnify and keep indemnified I4T, its affiliates, officers, employees, agents, successors from and against any loss (including legal costs and expenses on a full indemnity basis) expense, damages, penalties, fines and/or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceedings by any person against any of those indemnified where such loss or liability arose out of, in connection with, or in respect of:

  • any breach of the terms of this Agreement or provision of incorrect (private or business) information, resulting in failure to deliver expected services to the Software Customers.
  • any fact or issue arising from this Agreement;
  • any data collected by the OptinTrades;
  • any works, including Trade Services and the Works, undertaken by the OptinTrades; and
  • any breach of the terms of this Agreement or provision of incorrect (private or business) information, resulting in failure to deliver expected services to the Software Customers.

18. TERMINATION

(18.1) Either party may terminate this Agreement:

  • (a) without cause at any time upon 30 days prior written notice to the other party;
  • (b) immediately, without notice, in the event of any one of the following occurring:

(18.2) I4T may terminate this Agreement or deactivate the Provider ID immediately, without notice, in the event the OptinTrades is no longer qualified, licenced or insured, under applicable law, to provide Trade Services.

(18.3) I4T may terminate this Agreement or deactivate the Provider ID immediately, without notice, in the event the OptinTrades, its officers, employees and/or agents, are charged and/or convicted of serious criminal offence.

(18.4)Any termination of this Agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.

(18.5) Upon termination of this Agreement, the OptinTrades will:

  • (a) promptly return to I4T the Specifications and all marketing material provided to the OptinTrades by I4T;
  • (b) immediately delete and fully remove the Provider App from any devices on which it has been installed;
  • (b) immediately ceases and desist the use of the Provider ID; and
  • I4T will remove any data related OptinTrades.

(18.6) No amounts paid pursuant to this Agreement will be refundable upon termination of this Agreement.

19. IMPLIED TERMS AND CONSUMER GUARANTEES

(19.1) Subject to subclause 19.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

(19.2) Pursuant to s.64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the OptinTrades establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited:

(a) in the case of goods, to any one of the following as determined by I4T:

  • (i) the replacement of the goods or the supply of equivalent goods;
  • (ii) the repair of the goods;
  • (iii) he payment of the cost of replacing the goods or of acquiring equivalent goods; or
  • (iv) the payment of the cost of having the goods repaired; and

(b) in the case of services, to any one of the following as determined by I4T:

  • (i) tthe supplying of the services again; or
  • (ii) the payment of the cost of having the services supplied again.

20. CONFIDENTIALITY

20.1 The OptinTrades and I4T acknowledges and agrees that in the performance of this Agreement, it may have access to or may be exposed to, directly or indirectly, confidential information of I4T (“Confidential Information”) and OptinTrades. The Confidential Information may include, but not limited to, marketing and business plans, business, financial technical, operational and such other non-public information (whether disclosed in writing or verbally) that I4T and OptinTrades designates as being proprietary or confidential or of which the OptinTrades and/or I4T should reasonably know that it should be treated as confidential.

20.2 OptinTrades and I4T will not, without the prior written approval of both parties, disclose to any third party the Confidential Information.

20.3 The OptinTrades and I4T will not be in breach of subclause 20.2 in circumstances where it is legally compelled to disclose the Confidential Information.

20.4 The OptinTrades will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the Confidential Information.

20.5 Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

20.6 This clause will survive the termination of this agreement.

21. PRIVACY POLICY

21.1 Subject to applicable law, I4T may provide to Customers, an insurance company, relevant authorities and/or regulatory agencies, any information (including personal information) about the OptinTrades if:

  • (a) tthere is a complaint, dispute or conflict between the OptinTrades and Customers;
  • (b) is necessary to enforce the terms of this Agreement; and
  • (c) it is so compelled by law to do so.

21.2 I4T may collect the OptinTrades’ personal data during the term of this Agreement. Such information may be stored, processed, transferred and accessed by I4T, third parties and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purpose consistent with I4T’s legitimate business needs. The OptinTrades expressly consents to such sue of personal date.

22. GST

22.1 Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

22.2 In addition to paying the Licence Fee, the Transaction Fee and any other amount payable or in connection with this Agreement (which is exclusive of GST), the OptinTrades will pay to I4T an amount equal to any GST payable from any supply by I4T in respect of which the Licence Fee, the Transaction Fee or any other amount is payable under this agreement.

23. TRIAL PERIOD

23.1 The Parties agree that for the purposes of beta testing the Software and the Provider App, there will be a trial period of four (4) weeks from the date of this Agreement ("the Trial Period").

23.2 During the Trial Period:

  • (a) the OptinTrades and I4T agree to work together to identify and rectify and defects and bugs that the Software and/or Provider App may contain;
  • (b) no Licence Fee, Request Fee or Transaction Fee will be payable pursuant to clause 6 above; and
  • (c) either party may terminate this Agreement, without cause, upon 7 business days’ notice.
  • 23.3 The Licence Fee, the Request Fee and the Transaction Fee will become immediately payable upon completion of the Trial Period, subject to clause 6.

    23.4 Upon completion of the Trial Period, the Agreement will proceed as if this clause 23 is severed from the Agreement.

    24. DISPUTE RESOLUTION

    24.1 This clause applies to disputes, controversies, differences or claims (“Disputes”) under this Agreement.

    24.2 If a Dispute arises, the parties undertake in good faith to use all reasonable endeavours to settle the dispute expeditiously.

    24.3 Unless a party has complied with clause 24.4 and 24.5, that party may not commence court proceedings relating to the dispute except where that party seeks urgent interim or interlocutory relief. If a party fails to comply with those clauses, the other party need not comply with this clause before commencing court proceedings.

    24.4 Where a party claims that a dispute has arisen, a notice of dispute (setting out in detail the basis of that dispute, the relief sought, including to the extent possible, any amount claimed) must be served by the disputing party.

    24.5 The party in receipt of the notice of dispute must reply in writing to the notice of dispute within 5 business days from receipt of the notice of dispute. The reply must set out in detail the recipient’s response to the matters set out in the notice of dispute and any additional matters the recipient considers relevant.

    24.6 IIn the event that: (a)the parties cannot resolve the dispute within 5 business days from the date of receipt of the reply (or within such further period as may be agreed between the parties); or (b) if the recipient of the notice of dispute fails to provide a written response within the said 5 business days.then any party may, by notice in writing to the other party, refer the dispute for resolution by a determiner(“Determiner”) in accordance with clause 24.7

    24.7 TThe Determiner must be an expert in the field of dispute. If a Determiner cannot be agreed, the Determiner will be nominated by the President of the Law Society of NSW.

    24.8 The parties must enter into an agreement with the determiner appointed under clause 24.7 (“Selection of Determiner”) setting out the terms of the Determiner’s determination and the fees payable to the Determiner.

    24.9 When a dispute is referred to a Determiner for determination under this clause, each of the parties must use all reasonable endeavours to make available to the Determiner, within a time period specified by the Determiner, details of all facts and circumstances which the Determiner may need to know in order to determine the dispute and must ensure that its employees, agents and consultants are available to appear at any hearing or enquiry called for by the Determiner.

    24.10 If a party makes a written submission to the Determiner, it shall provide copies of the submission to the other parties at the same time as it provides the submission to the Determiner.

    24.11 In making their determination, the Determiner must ensure that no such determination will have a material adverse effect on the right of a party under this Agreement and must give effect to the intent of the parties in entering into this Agreement and the purpose of this Agreement.

    24.12 The Determiner must:

    • (a) proceed in any manner as the Determiner thinks fit without being bound to observe the rules of natural justice or the rules of evidence;
    • (b) not accept verbal submissions unless all parties are present and on receipt of written submission from one party ensure that a copy of such submission is given promptly to the other party;
    • (c) take into consideration all documents, information and other material which the parties give the Determiner which the Determiner in its absolute discretion considers relevant to the determination of the dispute;
    • (d) not be expected or required to obtain or refer to any other documents, information or material (but may do so if the Determiner so wishes);
    • (e) issue a final certificate stating the Determiner’s determination; and (f) act with expedition with a view to issuing the final certificate as soon as practicable.

    24.13 The Determiner must determine which party or parties may pay the costs and expenses arising out of the reference of the dispute to him/her. In default of such a determination the costs and expenses must be borne by the parties in equal share.

    25. GENERAL

    25.1 Entire agreement This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software.

    25.2 Notices All notices which are required to be given under this agreement must be in writing and must be sent to the address of the recipient set out in the Schedule or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient's mail server.

    25.3 Supplemental Terms The OptinTrades acknowledges and agrees that supplemental terms may apply to its use of the Software and/or the Provider App, such as policies or terms related to certain features and functionality, which may be modified from time to time (“ Supplemental Terms ”). The OptinTrades may be presented with certain Supplemental Terms from time to time by I4T. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.

    25.4 Assignment I4T may assign or transfer the Agreement or any of its rights or obligations under this Agreement, in whole or in part, without consent or notification of the OptinTrades. The OptinTrades may not assign or transfer, whether in whole or part, any of the OptinTrades’ rights or obligations under this Agreement without prior written consent of I4T.

    25.5 Governing law this agreement shall be governed by and construed in accordance with the laws for the time being in force in the local state of the OptinTrades and the parties agree to submit to the jurisdiction of the courts and tribunals of that local state of the OptinTrades.

    25.6 Waiver No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

    25.7 Variation No variation of this agreement will be effective unless in writing and signed by both parties.

    25.8 Severability Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.

    25. SCHEDULE - COMMENCEMENT DATE, FEES

    1 Commencement Date Start of the Software Install date
    2 Request Fee To be Agreed between I4T and OptinTrades and/or 3rd partiess
    3 Transaction Fee To be Agreed between I4T and OptinTrades and/or 3rd parties
    4 Licence Fee To be Agreed between I4T and OptinTrades and/or 3rd parties
    5 SMS Fee Pre-purchasing from the Software platform and prices are available online
    6 Rebate / Commission An agreed fee may be payable to 3rd parties


    'Last Updated 22 Feb 2019'