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Terms and Conditions

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Last updated: October 12, 2020

Harth Systems - Odin Licence Agreement T&C

These are the Terms and Conditions of the Licence Agreement between Harth Systems Pty Ltd ABN 26 637 620 127 trading as Harth Systems of 14 Attunga Avenue, Earlwood NSW 2206 as licensor, who will be referred to in these Terms and Conditions as "Harth", and the Licensee, being the person or company who details have been entered into the "Licence Agreement Licensee Details" form on the website for the Software.

1. The components of This Licence Agreement

1.1 This Licence Agreement comprises:

1.2 In This Licence Agreement:

1.3 In This Licence Agreement unless the context otherwise requires:

1.4 If any provision of This Licence Agreement is unenforceable for any reason, that fact does not affect the enforceability of any other provision of This Licence Agreement

2. Grant of Licence

2.1 In consideration of the Licensee:

2.2 Immediately upon a valid eMail Validation Code followed by a valid SMS Validation Code being entered into the appropriate places in the "Licence Agreement Licensee Details" form on the website for the Software:

2.3 In the interest of clarity, the Licence is a subscription service enabling the Licensee to access and Use the Software via a Web Browser and to be provided with those of the Services that the Licensee has requested.

2.4 The Licensee must pay the Initial Fees to Harth before Harth grants the Licence to the Licensee and in accordance with a Tax Invoice that Harth will Give to the Licensee.

2.5 Licensee must pay the Licence Fee to Harth monthly in advance by the Due Date and in accordance with a Tax Invoice that Harth will Give to the Licensee no later than 5 Business Days before the Due Date for that payment.

2.6 In consideration of Harth agreeing to:

3. Changes to Services

3.1 The Licensee may at any time and from time to time by Notice to Harth request a change to the Services to:

3.2 If Harth receives a request pursuant to clause 3.1.1:

3.3 Harth may, in its absolute discretion, agree to or refuse any request pursuant to any or all of clauses 3.1.2,

3.4 If Harth agrees to any request pursuant to either or both of clauses 3.1.2 and 3.1.3, the nature, scope and extent of the Services that Harth will provide in response to the request and the fee(s) that Harth will charge for those Services will be in accordance with Harth's policy in respect of such Service current at the time of Harth agreeing to the request.

3.5 If Harth receives a request pursuant to clause 3.1.4, then the nature, scope, extent, fee payable and, where applicable, Expenses payable for or in connection with those Additional Services, will be as agreed between the Parties In Writing, as may be varied by the Parties In Writing from time to time.

3.6 Harth will as soon as practicable after agreeing to any request it receives pursuant to clause 3.1 provide the Licensee with a revised Schedule that specifies, in addition to the other information specified in the Schedule:

3.7 From the date on which Harth Gives the Licensee the revised Schedule in accordance with clause 3.6, that revised Schedule will be the Schedule.

4. Renewal of Licence

4.1 Unless Termination occurs earlier, Renewal will automatically occur at the end of the Licence Period.

4.2 Each Renewal will be:

4.3 No later than 30 Business Days prior to the end of the Licence Period Harth will Give the Licensee a Notice informing the Licensee:

5. Limitations on Licence

The Licence is granted subject to the following specific limitations:

6. Licensee's Data

6.1 The Parties agree and acknowledge that all data entered by or on behalf of the Licensee using the Software remains at all times the property of the Licensee.

6.2 Except:

6.3 Despite anything in clause 6.2, the Licensee acknowledges and agrees that Harth will create regular backups of the Licensee's Data in accordance with Harth's data back-up schedule an consents to Harth so doing.

6.4 As soon as practicable following Termination, Harth will provide the Licensee with a copy of the Licensee's Data unless:

6.5 Approximately 30 Business Days after Termination, Harth will, unless:

6.6 The Licensee acknowledges and agrees that, in connection with the deletion of any or all of the Licensee Data in accordance with clause 6.5:

6.7 That Parties agree that Clause 6.6 will endure and will survive Termination.

7. Support Services

7.1 Harth will provide Support Services in accordance with the Support Services Plan specified in the Schedule.

7.2 Harth will open a case for each Support Services request received from an Authorised Person and action that case in consultation with the Authorised Person who made the request until the issue the subject of the request has been resolved to Harth's reasonable satisfaction.

7.3 The Licensee agrees and acknowledges that a determination by Harth that an issue the subject of a Support Request has been resolved to Harth's reasonable satisfaction will be conclusive for the purposes of Harth's obligation under a Support Services Plan to provide Support Services, however, that does not prevent a fresh Support Service request from being made if the issue the subject of the original Support Service request persists or recurs.

7.4 Support Services provided by Harth under a Support Services Plan do not include:

7.5 The Licensee must pay the Support Services Plan Fees to Harth in advance as specified in the Schedule.

7.6 Harth will Give the Licensee a Tax Invoice that includes any Support Services Plan Fee payable no later than 5 Business Days before its Due Date for payment.

7.7 Harth may suspend Support Services until any Support Services Plan Fee that has not been paid by its Due Date is paid to Harth in full.

8. Training Services

8.1 Harth will provide training in the Use of the Software in accordance with the Training Services Plan specified in the Schedule.

8.2 The Licensee must pay the Training Services Plan Fees to Harth in advance as specified in the Schedule.

8.3 Harth will Give the Licensee a Tax Invoice that includes any Training Services Plan Fee payable no later than 5 Business Days before its due date for payment.

8.4 Harth may suspend Training Services until any Training Services Plan Fee that has not been paid by its Due Date is paid to Harth in full.

9. Additional Services

9.1 Harth will provide Additional Services as agreed between the Parties In Writing and/or as specified in the Schedule.

9.2 Harth will Give the Licensee a Tax Invoice that includes any fee payable for any Additional Services no later than 5 Business Days before its due date for payment.

9.3 The Licensee must pay all Tax Invoices Additional Services on or before the due date for payment specified in the Tax Invoice.

9.4 Harth may suspend the provision of any further Additional Services until any fee for Additional Services that has not been paid by its due date for payment is paid to Harth in full.

10. Warranty and indemnity by Licensee

10.4 The indemnity in clause 10.3 will endure and will survive the expiration or termination of This Licence Agreement.

11. Harth not liable generally

11.1 The Parties agree and acknowledge that to the fullest extent permitted by Law, Harth will have no responsibility and will not be liable to the Licensee or to any person for or on behalf of the Licensee for any financial or other compensation or for any loss or damage howsoever caused that arises directly or indirectly out of or in connection with:

11.2 The Licensee acknowledges that Harth has relied the acknowledgements and agreements of the Licensee in this Licence Agreement and warranties by the Licensee in clause 10.1 in agreeing to enter into This Licence Agreement with the Licensee.

11.3 Where the Law implies any condition or warranty in This Licence Agreement and the Law avoids or prohibits provisions in a contract excluding liability or modifying the application of liability or the exercise of liability under such condition or warranty, any such condition or warranty will be deemed to be included in This Licence Agreement. However, the liability of Harth for any breach of any such condition or warranty is limited, at the option of Harth, to one or more of the following:

11.4 Despite clause 11.3, if Harth is found to be liable at Law to the Licensee then to the fullest extent permitted by Law the liability of Harth to the Licensee shall be capped to no more than the aggregate amount of all Fees paid to Harth by the Licensee under or in connection with This Licence Agreement.

12. Pay of amounts owing to Harth

12.1 All Fees, once due, are non-refundable.

12.2 Harth accepts no responsibility for any delay or loss of funds while in transit through the banking system or through the post and will not regard any amount due to it as being paid until, where payment is:

13. Expenses

13.1 The Licensee must reimburse Harth for all reasonable Expenses Harth reasonably incurs in providing any of the Services to the Licensee, including an equivalent to any GST Harth has paid in respect of those Expenses.

13.2 Where Harth believes that it will incur Expenses in delivering any of the Services, Harth will Give the Licensee its best itemised GST-inclusive estimate In Writing of those Expenses and will not incur any of those Expenses until the Licensee has Given Harth approval In Writing to do so.

13.3 Harth has no obligation to commence providing Services to which the estimated Expenses relate unless and until the Licensee provides its approval in accordance with clause 13.2, however, the Licensee must still pay to Harth all Fees due and payable by their respective due dates for payment.

13.4 If Harth subsequently forms the opinion that the actual Expenses will exceed the estimate previously given by more than 20%, Harth must provide the Licensee with its best revised estimate as soon as practicable but has no obligation to obtain the Licensee's approval before incurring the revised Expenses if Harth has already commenced providing the Services to which the revised estimate relates.

13.5 Harth will Give the Licensee a Tax Invoice for Expenses that Harth incurs, either:

13.6 Harth will Give the Licensee a copy of all receipts or Tax Invoices Expenses for which the Licensee must reimburse Harth in accordance with this clause 13.1.

14. GST

14.1 Despite any other provision of This Licence Agreement, the Licensee must pay to Harth, GST in respect of each Taxable Supply made by Harth to the Licensee in accordance with the provisions of This Licence

14.2 The Parties agree that this clause 14 is an essential term of This Agreement and will endure and will remain in full force and effect despite Termination.

14.3 Harth makes no representation or warranty to the Licensee that the Licensee will be eligible to claim an Input Tax Credit in respect of any:

  1. Tax Invoices

15.1 Harth will provide the Licensee with a Tax Invoice for all Fees payable and for all Expenses the Licensee must reimburse Harth in accordance with This Licence Agreement.

15.2 Harth may aggregate various Fees and any Expenses with a common due date for payment into one Tax Invoice rather that providing the Licensee with a separate tax invoices for each of the Fees payable and for any Expenses.

16. Interest

16.1 Harth may charge the Licensee interest at the Interest Rate on the unpaid daily balance of any amount that is payable to Harth in accordance with This Licence Agreement and which Harth does not receive by 5:00pm Sydney time on the calendar day immediately following the date on which that amount was due to be paid.

16.2 Interest in accordance with clause 16.1 will be charged commencing on the 2nd calendar day after the day on which the amount was due to be paid to Harth to and including the day on which Harth receives payment of that amount.

16.3 Interest charged in accordance with clause 16.1:

17. Suspension of Licence

17.1 Harth may, at its discretion, suspend the Licence if any money due to it in accordance with This Licence Agreement is not received by Harth in full within 10 Business days of the date on which it was due to be paid to Harth.

17.2 If Harth decides to suspend the Licence, Harth will:

17.3 Upon receipt by Harth of the amount specified in clause 17.2.3.4, Harth will:

- 17.3.1 lift the suspension; and

- 17.3.2 restore access to the Software;

- 17.3.3 resume provision of the Services; and

- 17.3.4 inform the Licensee accordingly In Writing.

17.4 The Licensee acknowledges and agrees that Harth has no responsibility or liability to the Licensee or to any other person for any loss, damage or harm, arising directly or indirectly out of or in connection with the suspension of the Licence and any consequential actions by Harth in accordance with clauses 17.2.1 and 17.2.2.

18. Termination

18.1 The Licensee may at any time Give Harth a Termination Notice, which must be:

18.2 The Licensee must on or prior to Termination pay to Harth in full all money owing to Harth up to and including that date of Termination.

18.3 Harth may Give the Licensee a Termination Notice if:

18.4 A Termination Notice given by Harth in accordance with clause 18.3 must be:

18.5 If the Licensee remedies the Default to Harth's reasonable satisfaction within the time specified in the Termination Notice, then Harth will Give the Licensee a Notice withdrawing the Termination Notice.

18.6 At 5:00pm Sydney time on the Termination Date:

18.7 If any money specified in the Termination Notice remain unpaid at the end of 5 Business Days following Termination Harth may issue a legal demand for the payment of that money plus interest plus Harth's legal expenses in connection with the preparation and serving of that demand.

18.8 If any demand issued pursuant to clause 18.7 remains unsatisfied at the end of the period specified in the demand for compliance the Harth may exercise and all of its rights at Law for the recovery of the money owing to plus interest plus Harth's legal and other expenses incurred in connection with the recovery ot attempted recovery of that money.

19. Notices generally

19.1 Wherever possible Notices Given Pursuant to This Licence Agreement should be sent by eMail.

19.2 Notices must:

19.3 The Parties agree that a Notice is deemed to be received by the Party to whom it is to be given:

19.4 However, a Notice will be deemed received earlier than provided for in clause 19.3 if the recipient acknowledges to the sender receiving the Notice at an earlier time.

19.5 Where a Notice is sent by eMail and the intended recipient denies receiving it, the burden of proving that the intended recipient received the Notice lies with the sender and the standard of proof will be in accordance with s. 140 of the Evidence Act 1995 (NSW).

20. Consents and approvals

Where This Agreement gives Harth a right or power to consent or approve in relation to a matter under This Agreement, Harth may withhold any consent or approval or give consent or approval conditionally or unconditionally. The Client must comply with any conditions that Harth imposes on its consent or approval.

21. Waiver

21.1 A Party’s failure or delay to exercise a power or right under This Licence Agreement does not operate as a waiver of that power or right.

21.2 The exercise by a Party of a power or right under This Agreement does not preclude:

  1. No assignment by Client The rights and obligations of the Client under This Licence Agreement may not be assigned.

  2. Whole agreement

The Parties acknowledge and agree that This Agreement:

  1. No merger

Nothing in This Licence Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a Party may have against the other Party or any other person at any time.

  1. Governing law

This Licence Agreement and the rights and obligations of the Parties must be construed in accordance with and governed by the laws of the State of New South Wales, Australia and the Parties submit to the jurisdiction of the courts of that State.