objective

Objective Subscription Software

Terms of Service

Last updated: 1 December 2020

IMPORTANT NOTE:  This is Objective’s subscription software contract (“Agreement”) for Objective’s subscription software solutions. Please read this Agreement carefully before using any Objective subscription software because use of Objective subscription software means acceptance these terms and conditions as referred to in the Customer’s Buying Record. For those Customers who become subscribers by completing an online subscription this Agreement is the contract on which that transaction is based when the Customer clicks acceptance to complete the online transaction. For those Customers who become subscribers by signing an Objective Software Order Form document this Agreement is the contract on which that Software Order Form is based when the Customer signs that document.

The definitions of all capitalised terms used throughout this Agreement can be found in clause 18 below.

THANK YOU FOR CHOOSING OBJECTIVE

IN CONSIDERATION of the covenants in this Agreement Objective and the Customer agree as below.

  1. Scope of this Agreement
    1. This Agreement sets out Objective’s terms and conditions for the Customer’s subscription to the Licensed Software identified in the Customer’s Buying Record.
    2. This Agreement does not apply to Objective’s cloud-based solutions, access to which will require a separate cloud-based contract with Objective.
    3. This Agreement does not apply to Objective’s consultancy or professional services, access to which will require a separate professional services-based contract.
  2. Licence Grant
    1. Subject to the terms of this Agreement Objective licences the Licensed Software to the Customer on the following basis:
      1. The licence grant is a personal, non-exclusive, non-transferable and non-sublicensable subscription (i.e time-limited) licence to download, install, use and run the Licensed Software for the Licence Period, strictly for the Customer’s own business purposes and by not more than the maximum Licence Volume, in object code form only and subject to the restraints in this Agreement.
      2. The Customer’s use must not exceed permitted use under any applicable copyright legislation.
      3. The Customer is authorised to make the following copies:
        1. one (1) copy of the Licensed Software, strictly as part of the Customer’s backup and archival purposes for use in the Customer’s own passive disaster recovery or business continuity processes;
        2. as many copies of the Documentation as are reasonably necessary for the authorised use of the Licensed Software in accordance with the terms of this Agreement;
      4. The grant of licence is automatically and contemporaneously accompanied by the Support Service for the Licensed Software for the Licence Period.
      5. Use of any of the words “acquire”, “acquisition”, “purchase”, “sell”, “buy” or “buying” in this Agreement is a reference to a grant of licence only and not to outright purchase. The Licensed Software is licensed, not sold, and Objective retains ownership of the Licensed Software and reserves all rights not expressly granted to the Customer in this Agreement.
    2. It is a condition of the licence that the Customer will not:
      1. exceed the Licence Volume without first paying Charges for such excess use;
      2. use the Licensed Software by placing it on a network so that third parties’ users beyond the Customer’s Licence Volume limit can use it;
      3. modify, enhance, improve, adapt, alter, translate, publish or create derivative works from the Licensed Software and/or Documentation;
      4. copy the Licensed Software in any form or from any media or download, whether in source or object code form in excess of the express number and type of copies permitted in this Agreement;
      5. merge or otherwise subsume the Licensed Software and/or Documentation within or with other software and/or documents or permit the Licensed Software and/or Documentation to be combined with any other programs to form a combined work;
      6. give, perform, deliver, display, distribute, licence, sub-licence, sell, lease, rent or loan the Licensed Software and/or Documentation, or any part thereof, or otherwise encumber the Licensed Software and/or Documentation in any way, to any third-party whether associated with the Customer or not, or otherwise delegate or subcontract any or all of the Customer’s rights or obligations arising out of the grant of licence, or transfer, assign or novate the Licensed Software and/or Documentation or provide access or use of the Licensed Software or any part, module, feature or function to any third-party or third-parties;
      7. reverse engineer, reverse compile, decompile, disassemble, or otherwise attempt to derive the source code or create derivative works from the source code for the Licensed Software;
      8. open, break, crack, scan, read or otherwise violate any protected file relevant to the installation activity for Licensed Software. To avoid doubt, access to protected files by the Licensed Software itself as part of its normal operation is not prohibited;
      9. use the Licensed Software for competitive analysis or to build competitive products;
      10. publish the results of any performance or benchmark tests run on the Licensed Software or any component or module of the Licensed Software;
      11. remove or alter or obscure any proprietary labels or notices from the Licensed Software and/or Documentation;
      12. use the Licensed Software and/or Documentation in furtherance of the planning, construction, maintenance, operation or use of any nuclear facility or for the flight, navigation or communication of aircraft or ground support equipment, or for any other purpose outside of the scope of this Agreement without Objective’s prior written consent;
      13. use the Licensed Software and/or Documentation in contravention of current local, state or territory, federal, foreign or international laws and regulations, concerning copyright, defamation, discrimination, threats, indecency and obscenity, and any policies, directives and guidelines relating to information security, data transfer and privacy protection affecting the Customer; and/or
      14. encourage or assist or participate in any way with any third-party to do any of the foregoing.
    3. It is a condition of the licence that the Customer will:
      1. be responsible for all information and records inputted to the Licensed Software;
      2. observe the Licence conditions at all times and avoid any and all infringement of Objective’s Intellectual Property Rights;
      3. be responsible for all environments in which the Licensed Software is installed update and maintain the accuracy of the information about the Customer’s use of the Licensed Software;
      4. allocate and monitor Users of the Licensed Software and Support Contacts;
      5. protect passwords for any authorised use of the Licensed Software; and
      6. ensure Support Contacts are the only Users who contact the Support Centre for Support Service. To be clear the Support Service is focused on Licensed Software functionality and not to be used as a training substitute.
    4. At the end of the Licence Period for the Licensed Software the Customer must promply cease all use of the Licensed Software and Documentation. Within thirty (30) days of the end of the Licence Period, the Customer must wholly delete all copies of the Licensed Software from the Customer’s systems and facilities including all production and non-production instances and backups, and including from systems and facilities of its agents and contractors, if any. The Customer must also delete all digitial copies of the Documentation. The Customer must certify in writing to Objective, promptly upon request, that the foregoing deletion activities have been completed. To the extent the Customer is required by law to keep the Licensed Software or Documentation for a period longer than thirty (30) days prior to the foregoing deletion then the Customer must notify Objective in writing of the longer period and the legal requirement basis, and must still carry out the deletion promptly at the end of that legally required longer period.
    5. The Licensed Software is further described in the Documentation and the Support Service is further described in the Support Handbook. The Documentation and the Support Handbook are both incorporated into this Agreement.
    6. The Customer acknowledges and accepts that Objective will have no obligations or responsibility under this Agreement for issues caused by the Customer’s use of any third-party hardware or software not expressly licensed by Objective.
  3. Licensed Software
    1. The Licensed Software is the particular release of the Objective software specified on the Buying Record and further detailed in the Documentation.
    2. Objective may make available future releases of the Licensed Software at Objective’s discretion at any time during the Licence Period.
    3. Non-major releases of the Licence Software will be available for free as part of the Support Service but in the case of major releases that deliver substantive generational change Objective reserves a right to make them available to the Customer, at Objective’s discretion, with or without accompanying Charges.
  4. Licence Period
    1. The Licence Period starts on the Commencement Date and continues for the Term (i.e the Initial Term plus any Extended Term(s)), subject to earlier termination in accordance with this Agreement.
    2. The Initial Term will automatically extend for one (1) year periods (i.e Extended Term(s)) unless either the Customer or Objective cancels an automatic extension within time as set out in clauses 4.3 and 4.4 respectively.
    3. The Customer can prevent an Extended Term from coming into effect as follows:
      1. If the Customer has subscribed by completing an online transaction, by cancelling the extension through the Customer’s Online Account any time before the end of the current Licence Period; and
      2. If the Customer has subscribed by signing a Software Order Form, by giving written notice to Objective of the election to cancel in accordance with clause 17.13 to be received at Objective at least thirty (30) days before the end of the then-current Licence Period (i.e Initial Term or Extended Term as the case may be).
    4. Objective can prevent an Extended Term from coming into effect by giving the Customer at least six (6) months’ prior notice of the election to cancel to be delivered to the Customer as follows:
      1. If the Customer has subscribed by completing an online transaction, by providing the notice through the Customer’s Online Account; and
      2. If the Customer has subscribed by signing a Software Order Form, by notifying the Customer’s representative in writing of the election to cancel.
    5. If either Party does not elect to stop an Extended Term within time then the Extended Term automatically comes into effect pursuant to clause 4.2 and the Customer must pay to Objective the annual-in-advance Charges for the Extended Term in accordance with this Agreement and the Buying Record and Objective must supply the Licensed Software and Support Service for that period.
    6. Stopping an Extended Term means the Customer will continue to be able to use the Licensed Software for the remainder of the then-current Licence Period but thereafter all right to use will cease. To be clear, Objective does not refund fees for early cancellation.
  5. Licence Volume
    1. The Licensed Software is supplied on a subscription or time-limited basis. The subscription is based upon the Licence Volume at the Commencement Date. The Licensed Software is not supplied on a consumption basis based on Customer usage. The Licence Volume operates as both a floor and a limit for the Licensed Software for at least the Initial Term. If at any time during the Licence Period the Customer does not use the Licensed Software up to the Licence Volume set out in the Buying Record that does not oblige Objective to reduce its Charges.
    2. At any time during the Licence Period the Customer may request Objective to immediately increase the Customer’s Licence Volume by granting Additional Licences either:
      1. through the Customer’s Online Account where such functionality is available; or
      2. through a documented change or variation as agreed with Objective.
    3. Charges for Additional Licences will be Objective’s then-current pricing for the Licensed Software unless otherwise agreed in the Buying Record.
    4. At any time during the Licence Period the Customer may request Objective to reduce the Customer’s Licence Volume from the start of the next Extended Term period as follows:
      1. If the Customer has subscribed by completing an online transaction, through the Customer’s Online Account;
      2. If the Customer has subscribed by signing a Software Order Form, by seeking a documented change or variation from Objective through the Customer’s allocated Objective Account Manager.
    5. Objective reserves a right to conduct an audit of usage against Licence Volume at least once per annum during the Term and the Customer will cooperate reasonably with such audit.
    6. The Customer acknowledges that excess usage beyond the paid Licence Volume ceiling is automatic acceptance of an obligation to pay Charges for the excess licences for the period starting when the excess use began to the end of the then-current Licence Period.
  6. Support Service
    1. Objective will provide the Support Service detailed in the Buying Record.
    2. The period for supply of the Support Service is the same as the Licence Period.
    3. The Charges for the subscription to the Licensed Software covers the supply of the Support Service unless otherwise provided in the Buying Record.
    4. The Support Service for the Licensed Software will be as set out in the Buying Record and the Support Handbook will be accessible at objective.com and is incorporated into and form(s) part of this Agreement.
    5. If the Customer installs a new release of the Licensed Software in a production environment (as distinct from a test environment) the Customer’s licence rights in respect of that prior release promptly end and Customer must comply with clause 2.4.
  7. Free Trial
    1. Objective may offer a free trial of the Licensed Software at objective.com and if the Customer elects to start a free trial then the terms of this Agreement will apply to the extent relevant for the free trial.
    2. Objective may limit eligibility to a free trial in order to prevent free trial abuse.
    3. Objective may require the Customer to provide payment details to start the trial.
    4. If the Customer does not want to continue the Licence Period beyond the free trial period the Customer must cancel the applicable licence through the Customer’s Online Account before the end of the trial period.
    5. If cancellation does not occur before the end of the free trial period Objective may automatically charge the Customer for the licence on the first day following the end of the trial. By providing payment details in conjunction with the trial, the Customer agrees to this charge using such payment details.
  8. Buying Record and Charges
    1. The Buying Record will set out the specific Licensed Software, Licence Period, Licence Volume, Support Service and Charges for the Customer’s subscription to the Licensed Software as at the Commencement Date and may be updated from time to time during the Licence Period in accordance with this Agreement.
    2. The Buying Record automatically incorporates this Agreement.
    3. All Charges for Licensed Software and Support Service are payable on an annual-in-advance basis.
    4. All payable sums are shown exclusive of Tax unless otherwise stipulated and the Customer must pay Objective the Tax-exclusive amount and the amount of Tax imposed at the same time.
    5. Objective will provide a Tax Invoice(s) to the Customer for payment of the Charges.
    6. The Customer will pay each Tax Invoice rendered as follows:
      1. If the Customer has subscribed by completing an online transaction, at the time of the purchase transaction i.e on the Commencement Date;
      2. If the Customer has subscribed by signing a Software Order Form, within thirty (30) days of the Commencement Date in the Software Order Form.
    7. If for any reason a Tax calculation under this Agreement differs from a calculation determined by the relevant taxation office, the Customer must pay the extra difference to Objective (or Objective must pay the under difference to the Customer as the case may be). Objective will provide the Customer with an adjustment note addressing the Tax determination within thirty (30) days.
    8. If Tax changes occur during the Licence Period Objective may adjust the tax-inclusive price for the Customer’s subscription and the Customer must pay the adjusted sum at the next billing date or earlier at Objective’s discretion.
    9. If the Customer reasonably considers that a Tax Invoice has been incorrectly rendered by Objective, the Customer must pay the undisputed portion of the Charges and as soon as practicable and in any event prior to the partial payment, notify Objective of its dispute as to the balance in sufficient detail to enable Objective to understand the basis of the dispute.
    10. The Customer acknowledges and accepts that disputes about Charges must be initiated in a timely manner. The Customer may not initiate any dispute over any Charges or part thereof if the relevant invoice was issued three (3) months earlier.
    11. If the Customer has failed to pay any undisputed Charges within the time in clause 7.9 Objective must notify the Customer of the lateness and give the Customer fourteen (14) days’ notice to make its payment. If Customer has still not paid the undisputed Charges by the end of the late notice period Objective may apply interest on the undisputed Charges at the rate of 3% per annum above the prevailing base lending rate quoted by the National Australia Bank (or, if lower, the highest rate permitted by law) of the unpaid sum which will accrue daily from the end of the late notice period until payment is received. The interest will be calculated weekly and compounded monthly up to the date of actual payment. The Customer will pay interest on demand.
    12. Objective reserves the right, upon thirty (30) days advance written notice, to pro-rate any annual period and corresponding Charges to align with an end date of 30 June during each year of the Term.
    13. Objective reserves a right to change its publicly published pricing for the Licensed Software and Support Service and its licensing bands from time to time but if and when such changes are made the earliest impact they will have on the Customer’s Charges will, subject to clause 7.14, be at the next Extended Term.
    14. Charges for Additional Licences will be as follows:
      1. If the Customer has subscribed by completing an online transaction, the pricing available through the Online Account;
      2. If the Customer has subscribed by signing a Software Order Form, the then-current list pricing offered by Objective for the Licensed Software unless otherwise agreed in the Software Order Form.
    15. The Charges for each Extended Term year period will be subject to an uplift of five per cent (5%) unless Objective has agreed an alternative uplift formula in either of the following:
      1. If the Customer has subscribed by competing an online transaction, in the Online Account pricing; and
      2. If the Customer has subscribed by signing a Software Order Form, in the Software Order Form document.
    16. For Customers who subscribe online:
      1. the Customer authorises Objective to store the Customer’s payment method(s) in the Online Account and to automatically charge that payment method(s) every year until the Licence Period ends in accordance with this Agreement;
      2. the Customer may edit the Customer’s payment information any time in the Online Account; and
      3. the Customer acknowledges that Objective may apply reasonable terms and conditions governing the use of that Online Account, which will be separate from this Agreement.
    17. Charges are not subject to refund except in accordance with law and expressly in accordance with this Agreement.
  9. Consent to use Analytics Data
    1. The Customer acknowledges that the Licensed Software may contain analytics functionality to enable Objective to collect, maintain, process and use technical, operational, usage, diagnostic and related information about how the Licensed Software functions (“Analytics Data”).
    2. The Customer agrees Objective may gather and process Analytics Data in clause 8.1 strictly for the purpose of improving Objective’s software and services.
  10. Customer Data and Intellectual Property Rights
    1. The Customer owns all Customer Data input to and generated by the subscription process for the Licensed Software and the operation of the Licensed Software. Objective does not acquire any right, title or interest in Customer Data except a limited licence to access Customer Data strictly as necessary for the purpose of supplying the Licensed Software and Support Service under this Agreement.
    2. Intellectual Property in the Licensed Software and all Documentation associated with it is owned or licensed by Objective.
    3. Intellectual Property in any and all new material created by Objective related to the Licensed Software and Documentation, including New Releases, vests automatically and immediately upon creation in Objective.
    4. Users may provide Objective with comments and feedback (“Feedback”) using the Contact Us form on the Website and through Objective’s support portal and the Customer automatically grants, and will ensure Users automatically grant Objective a royalty-free, perpetual licence to use, reproduce, modify and adapt all such Feedback in any manner Objective sees fit without attribution to the individual author of such Feedback.
    5. The Customer permits Objective to retain Customer Data (Support) in Objective’s support portal indefinitely following termination of this Agreement, howsoever that occurs, strictly for Objective’s internal knowledge management purposes and subject at all times to the confidentiality and privacy obligations set out in this Agreement.
  11. Privacy, Data Processing and Confidentiality
    1. Each Party will comply with applicable data privacy and data processing legislation. If the Customer seeks a Data Processing Addendum clause 17.22 below will apply.
    2. As each User Registers to use Objective Licensed Software, Objective will collect personal identification information (“Customer Privacy Material”) as part of Customer Data and Objective will comply with its Privacy Policy in respect of all such personal identification information.
    3. Objective will only act as a data processor in respect of Customer Privacy Material and will not re-use it or disclose it outside the requirements of this Agreement.
    4. Objective reserves a right to update the Privacy Policy from time to time to ensure compliance with law.
    5. Each Party agrees that it will not use in any way, on its own behalf or on behalf of any third party, except as expressly permitted by this Agreement, any of the other Party’s Confidential Information and will not disclose the other Party’s Confidential Information, except:
      1. to employees, agents, contractors or advisers needing to know the information for the purposes of this Agreement;
      2. with the other Party’s consent;
      3. if required to do so by law or a stock exchange; or
      4. as strictly required in Licensed Software with legal proceedings relating to this Agreement.
  12. Warranties
    1. Other than the express warranties following, Objective makes Objective Licensed Software available to Customer on an “as is” basis as far as allowable by law and the Customer agrees this is reasonable having regard to the fact that Objective Licensed Software is a licensed software and the Customer may access it on a free trial basis to evaluate the suitability of the software for the Customer’s own needs.
    2. Objective warrants that:
      1. it has standing to grant the licence contemplated in this Agreement;
      2. the Licensed Software and Documentation do not and will not infringe the Intellectual Property Rights of any third-party;
      3. the Support Services will be supplied with due care and skill; and
      4. the Licensed Software will, for a fixed period of ninety (90) days on and from the Commencement Date (“Warranty Period”), substantially conform to the applicable Documentation, and if it does not, then the Customer must let Objective know the specific details of the non-conformance in accordance with the Support Handbook and Objective, if it agrees the non-conformance is present, will, at its own expense, either replace that copy of the Licensed Software or correct any error in that copy of the Licensed Software or otherwise, to bring it into compliance with its Documentation.
    3. Except as expressly provided in this Agreement and to the maximum extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied by legislation, the common law, equity, trade, custom or usage or otherwise relating to the supply of the Licensed Software, the Support Services are hereby expressly excluded.
    4. If any law confers rights and remedies on the Customer which cannot be excluded as contemplated in clauses 12.1 and 12.3 then Objective does not exclude any such rights but, to the extent allowable by law, Objective does exclude all other conditions and warranties, and the Customer’s remedy for Objective’s infringement of those non-excludable rights will be limited to, at Objective’s election, either the replacement or resupply of the Licensed Software and Support Service to the Customer or refund to the Customer of the Charges paid for the Licensed Software and Support Service.
    5. Subject to clause 12.6, Objective will defend the Customer against any claim brought against the Customer by a third-party alleging that the Licensed Software, when used as authorised under this Agreement, infringes the third-party’s Intellectual Property rights (a “Claim”) in breach of the warranty at clause 12.2(b). Objective will indemnify the Customer and hold it harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Objective (including reasonable lawyer’s fees) arising out of a Claim, provided that Objective has received from the Customer: (a) prompt written notice of the Claim (but in any event notice in sufficient time for Objective to respond without prejudice); (b) reasonable assistance at its own expense in the defence and investigation of the Claim, including providing Objective with a copy of the Claim and all relevant evidence in the Customer’s possession, custody or control; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if any) of the Claim, provided that Objective agrees not to enter into any settlement that obligates the Customer to admit liability or to pay any amounts to the Party bringing the claim, without the Customer’s prior written consent, such consent not to be unreasonably withheld.
    6. Objective will have no obligation to defend the Customer or indemnify the Customer under clause 12.5 to the extent that the Claim arises due to the Customer using the Licensed Software for a purpose or in a manner for which the Licensed Software was not designed, or modifying the Licensed Software, where the Claim would not have arisen but for the use or modification.
    7. In the event of a Claim, Objective may, at its sole discretion:
      1. obtain for the Customer, on reasonable commercial terms, the right to continue to use the Licensed Software or obtain for Objective the right to continue to provide the Licensed Software, as applicable;
      2. replace or modify the Licensed Software in a manner so that the infringement or alleged infringement ceases without a material decrease in functionality; or
      3. if Objective reasonably concludes that neither (a) nor (b) is practicable, elect to terminate this Agreement and refund to the Customer any and all Charges paid by the Customer beginning from the date the affected Licensed Software was delivered.
    8. This clause 12 sets out the sole, exclusive and entire liability of the Parties arising out of or in connection with third-party claims asserting Intellectual Property rights infringement and is the sole remedy of a complaining Party.
  13. Limitation of Liability
    1. Subject to clauses 13.2 and 13.3, Objective’s liability to the Customer arising out of or in connection with this Agreement, whether arising in contract, tort (including negligence and breach of warranty), or pursuant to statute or in equity or otherwise, shall be limited in aggregate and to direct loss only to a sum equal to the Charges payable for the period of one (1) year preceding the event giving rise to the liability. If the event giving rise to the liability occurs within the first year of the Initial Term the sum will be the Charges for the first year of the Initial Term.
    2. In no event will Objective be liable to the Customer for any consequential, indirect, exemplary, special, or incidental damages, even if Objective has been advised of, knows of, or should have known of the possibility of such loss, damage or expense, nor will Objective be liable for failure to make anticipated savings, lost opportunity (including loss of opportunity to earn additional profits or make savings), lost revenue, extra expenses incurred, extra costs of working, lost data, lost profit, damage to any items not provided by Objective, losses arising from business interruption or loss of goodwill, loss of use of service or equipment, loss of technology rights or services, whether arising under any theory of contract, tort, strict liability or otherwise. To avoid doubt, consequential loss as a category or type of loss described in this clause are not recoverable by the Customer against Objective.
    3. The limitations in clause 13.1 and 13.4 do not apply to:
      1. liability to the Customer for bodily injury, including sickness, or death caused to any person;
      2. liability to the Customer for loss of or damage to the tangible property of any person;
      3. liability to the Customer for third-party claims alleging infringement of Intellectual Property Rights in breach of the warranty at clause 12.1(b), which are governed by the indemnity arrangement set out in clauses 12.5 to 12.7 inclusive.
    4. Subject to clause 13.3, the Parties intend to shorten the limitation period for any and all claims, actions, suits or demands, arising out of or in connection with this Agreement, and whether arising on contract, tort (including negligence and breach of warranty) or pursuant to statute or otherwise, to one (1) year after the end of this Agreement. To avoid doubt the Customer agrees one (1) year is a suitable limitation period having regard to the nature of the various software related activities addressed in this Agreement.
    5. The Parties agree that the limitation of liability arrangements in this clause are reasonable.
  14. Suspension Right
    1. Objective may suspend the Customer’s use of the Licensed Software or filter or block the Online Account and/or User access or Registration, without derogating from its right to terminate this Agreement and without liability for repudiation if:
      1. Objective is authorised to suspend the solution by a government, administrative, regulatory and/or law enforcement agency to do so;
      2. the presence of a Virus threatens the integrity of the Customer’s Online Account or any process related to operation of the Licensed Software;
      3. the Customer and/or any User is reasonably believed to have undertaken any of the prohibited actions in this Agreement; and/or
      4. Objective is facing a Force Majeure circumstance.
    2. Objective will exercise its right to terminate in the event the suspension contemplated above continues for thirty (30) calendar days.
  15. Termination
    1. Either Party may terminate this Agreement for cause before the end of the Term if:
      1. A Party commits a material breach of the terms of this Agreement and fails to cure the breach within thirty (30) days of receipt of the non-breaching Party’s written notice detailing the nature of the breach sufficiently for the breaching Party to be able to address the matter; or
      2. A Party commits an act of insolvency, comes under any form of insolvency administration, or assigns or purports to novate its rights otherwise than in accordance with this Agreement.
    2. The Parties agree that a material breach within clause 15.1 includes a failure to pay any undisputed Charges within the late notice period in clause 6.8.
  16. Dispute Resolution
    1. This clause 16 sets out the resolution process agreed by the Parties if a dispute arises out of or relating to this Agreement, including concerning the breach, termination, validity or subject matter thereof, the performance or non-performance of this Agreement or as to any related claim in restitution or at law, in equity or pursuant to any statute. Neither Party shall commence any court or arbitration proceedings without complying with the remainder of this clause 16.
    2. The Parties to this Agreement and the dispute expressly agree to first endeavour to settle the dispute by cooperation of and negotiation in good faith by senior authorised representatives over a period of ten (10) Business Days, or longer period if agreed in writing. If no resolution is reached by the end of that timeframe then the dispute must, within ten (10) Business Days, be referred to a mediator in Sydney, Australia agreed by the Parties for mediation administered by the Australia Commercial Disputes Centre (‘ACDC’). If the Parties have failed to agree on a mediator within five (5) Business Days then the mediator will be the mediator selected by the Director of ACDC or his or her nominee. Either Party may refer the dispute for mediation and request selection of a mediator as contemplated in this clause 16.2.
    3. The mediation shall be conducted in accordance with the terms of the ACDC Guidelines for Commercial Mediation (‘Guidelines’). The Guidelines set out the procedures to be adopted, process of selection of the mediator and the costs involved for the mediation. The Guidelines are hereby deemed incorporated into this Agreement.
    4. In the event that the dispute has not been settled within twenty-eight (28) days after appointment of the mediator, or such other period as agreed to in writing between the Parties, the dispute shall be submitted to expert determination in Sydney, Australia, administered by the ACDC and conducted in accordance with the ACDC Rules for Expert Determination (‘Rules’). The Rules set out the procedures to be adopted, process of selection of the expert and the costs involved for the expert determination. The Rules are hereby deemed incorporated into this Agreement.
    5. The expert shall not be the same person as the mediator.
    6. The Parties must pay the mediator's and, if applicable, expert’s remuneration in equal shares. Each Party must pay its own costs of the mediation and, if applicable, expert determination.
    7. Nothing in this clause 16 shall prevent a Party from instituting legal proceedings in order to obtain urgent equitable relief from an appropriate court.
  17. General
    1. Binding Agreement. This Agreement becomes legally binding:
      1. where the Customer buys licences online, when Objective successfully receives the payment;
      2. where the Customer signs a Software Order Form on the date of signing or earlier specified date if agreed by Objective; or
      3. where the Customer starts a free trial online, on the first date of that free trial period.
    2. Precedence. If there is any conflict between the components to this Agreement they will be interpreted in the following order of priority: (1) Buying Record; (2) these clauses 1 to 19; (3) the Support Handbook.
    3. The Parties may agree in the Buying Record to add certain additional terms to this Agreement.
    4. Entire Agreement. This Agreement contains the entire agreement between the parties in relation to the supply of the Licensed Software by Objective and supersedes all prior agreements and undertakings (oral or written).
    5. Assignment, Transfer and Sub-contracting. This Agreement and the obligations formed under it are personal to Objective and the Customer. The Parties agree that neither Party may, directly or indirectly, assign or transfer or sub-contract any or all of its rights and/or obligations whether it is affected by sale of assets, merger, insolvency, machinery of government change or otherwise, without the other Party’s prior written consent which shall not be unreasonably withheld.
    6. Neither Party may novate this Agreement except with the other Party’s prior written consent which may be given or withheld at that Party’s sole discretion and on such terms as that Party thinks fit and in any event on terms not less favourable than the then existing terms.
    7. Non-solicitation of Objective personnel. Throughout the term of this Agreement and for a period of twelve (12) months after expiry or termination, the Customer shall not solicit for employment, either directly or indirectly (for example though any agent, subsidiary company or associated person, firm or entity) any person employed or contracted by Objective and the Customer shall be restrained for the same period from employing or directly contracting with any such person.
    8. Subject to the Customer’s prior written consent which shall not be unreasonably withheld, Objective may use the Customer’s name and logo in any public news release or statement, case study and on the Website to publicise the fact that the Customer is a client of Objective. Objective may use the Customer’s name in Objective’s annual report and ASX notifications without the Customer’s prior consent.
    9. Any waiver under this Agreement must be in writing. Waiver of any part of this Agreement does not constitute a waiver of any other part of this Agreement.
    10. Governing Law and Jurisdiction. Subject to clause 19, this Agreement is governed by and must be construed in accordance with the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and any court that may hear appeals from any of those courts, for any proceedings in relation with this Agreement and waives any right it might have to claim that those courts are an inconvenient forum.
    11. Export Laws: The Customer will comply with all applicable export and import control laws, restrictions, national security controls and regulations of any country in its use of the Services and, in particular, the Customer will not export or re-export Services or the Keystone Documentation or any Objective Confidential if prohibited by export laws
    12. Except where Objective exercises its reserved right to update terms and conditions from time to time, the parties can only vary, modify, amend or add a term or terms of or to this Agreement if the variation, modification, amendment or addition is in writing signed by authorised representatives of each Party.
    13. All notices, consents, and approvals which may be given or required under this Agreement must be delivered to the other Party at the address identified in the Buying Record and may be given by email except in the case of notice of termination for cause, in which case the notice must be given in physical writing delivered by courier or by certified or registered mail (postage prepaid and return receipt requested) and delivery is deemed to occur in the case of courier delivery, one (1) Business Day after drop off, and in the case of mail, three (3) Business Days after being deposited in the mail. Either Party may change its address by giving written notice of the new address to the other Party but if the delivery or receipt is on a day which is not a Business Day or is after 5.00pm (addressee's time) it is deemed to have been received at 9.00am on the next Business Day.
    14. The relationship between the parties is one of independent contractors. Nothing in this Agreement shall be regarded as giving one Party any authority to bind the other to any agreement or purport to act as the agent of the other Party and each Party covenants and agrees that it shall not represent to any person, or act so as to cause any person to believe, that Party or any of its employees, agents, contractors or officers has or have such an authority to act as the agent of the other Party.
    15. Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement. The Customer’s Users are not third party beneficiaries to the Customer’s rights under this Agreement.
    16. If a provision of this Agreement is invalid, illegal or unenforceable, then that provision, to the extent of the invalidity, illegality or unenforceability, must be ignored in the interpretation of this Agreement. All the other provisions of this Agreement remain in full force and effect. In the event and to the extent of any inconsistency between two or more documents which form part of this Agreement, those documents will be interpreted in the following order of priority.
    17. Time is not of the essence of this Agreement except in relation to the reduced limitation period and payment period.
    18. Clauses relating to confidentiality, Intellectual Property, the Customer’s prohibited activities, limitation of liability, shortened limitation period, payments and dispute resolution have continuing effect and survive termination of this Agreement.
    19. All rights not expressly granted to the Customer in this Agreement are reserved by Objective.
    20. Electronic Signatures: Electronic signatures that comply with applicable law are deemed to be original signatures.
    21. Updating Terms. Objective reserves a right to update this Agreement from time to time provided that any changes shall not be adverse to the Customer having regard to the Customer’s rights and pricing at the time the Customer enters into Agreement. Further, Objective must give the Customer at least thirty (30) days prior written notice of the change.
    22. Exclusions. Neither the United Nations Convention on Contracts for the Sale of Goods nor the United States Uniform Computer Information Transactions Act (UCITA) apply to this Agreement, regardless of where the Customer is located.
    23. Anti-Corruption and Anti-Bribery. The Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Objective employee or agent in connection with this Agreement. The Parties agree reasonable gifts and entertainment provided in the ordinary course of business are not illegal or improper for the purposes of this clause.
    24. Data Processing Addendum. If the Customer is located in a country whose governing data privacy law is the European Union (EU) General Data Protection Regulation (GDPR) (as it is commonly called) or equivalent legislation, the Customer may determine that it is necessary to incorporate a Data Processing Addendum to this Agreement to comply with that law and enable Objective to process Customer Privacy Material in accordance with clause 11. If the Customer makes that determination then the Parties will enter into Objective’s Data Processing Addendum for Software at objective.com .
  18. Definitions & interpretation
    1. “Agreement” means these clauses together with the Buying Record and Support Handbook.
    2. “Business Day” means, for the purposes of clauses 16 (Dispute Resolution) and 17.13 (notices) above, any day that is not Saturday, Sunday or a formal public holiday in the city where Objective is located. For the purposes of the Support Service “Business Day” may be differently defined as set out in the Support handbook.
    3. “Buying Record” means:
      1. if the Customer subscribes by completing an online transaction, the Tax Invoice generated by Objective’s online purchase process and any updates to the details of it made through the Online Account from time to time throughout the Licence Period; and
      2. if the Customer subscribes by signing a Software Order Form, the Software Order Form signed by Objective and any updates to it made by written consent of the parties from time to time throughout the Licence Period.
    4. “Charges means the prices to be paid by the Customer to Objective for the Licensed Software and Support Service as set out in the Buying Record.
    5. “Commencement Date” means the start date of the Licence Period and is the earlier of:
      1. if the Customer subscribes to a free trial, the date of Registration for the free trial;
      2. if the Customer subscribes online without first going through a free trial, the date the payment is received by Objective;
      3. if the Customer subscribes by signing a Software Order Form, the start date shown in that document or, if none is shown, then the last date on which a Party signs; and
      4. in any case, the first date of download and/or install of the Licensed Software by the Customer.
    6. “Confidential Information” means all non-trivial information concerning a Party’s business or purpose, including information marked or otherwise designated as confidential, that the discloser treats as confidential or which the recipient knows or ought reasonably to know is confidential, and includes any trade secret, and to be clear it includes the Licensed Software. It does not include any information which is in the public domain other than as a consequence of breaching an obligation of confidence under this Agreement.
    7. “Currency” means Australian dollars unless a different currency is provided in the Buying Record.
    8. “Customer” means, as the case may be:
      1. the individual person recorded in a Buying Record who acquires a licence to use the Licensed Software on their own account for their own individual use and agreeing to be bound by this Agreement; or
      2. the business or government entity recorded in a Buying Record that acquires a licence to use the Licensed Software on its own account for use by persons working for or contracted to or otherwise authorised by that entity as that entity’s allocated users, and which agrees to be bound by this Agreement and to ensure all the allocated users also comply with this Agreement.
    9. “Customer Data” means any material or records inputted by the Customer into the Licensed Software and any electronic documents or other digital assets generated by the Customer in the course of using the Licensed Software.
    10. “Customer Data (Support)” means the Customer’s incident notices and any follow-up and other material submitted to Objective’s support portal as set out in the Support Handbook.
    11. “Documentation” means Objective’s universal published material for Users of the Licensed Software including but not limited to release notes.
    12. “Extended Term” means an extension to the Initial Term pursuant to clauses 3.3 to 3.6 inclusive or as agreed by the parties.
    13. “Force Majeure” means a situation, circumstance or cause, the effect of which, directly or indirectly, is that Objective is not reasonably able to meet its obligations under this Agreement and may include but is not limited to communications network interruption or outage or storage tape or disc failure, or acts of God, fire, lightning, flood, explosion, earthquake, storm, cyclone, natural disaster; radioactive, toxic or dangerous chemical contamination; riots, terrorism, civil commotion, malicious damage, sabotage, act of a public enemy, war (declared or undeclared) or revolution; action or inaction by a court, government or authority, denial, refusal or failure to grant any permit, authorisation, licence, approval or acknowledgement despite timely best endeavours exercised by Objective to obtain the grant; labour trouble (but not labour trouble of the workforce of the Objective) including strikes, lockouts, industrial or labour disputes or difficulties, work bans, blockages or picketing; accident; inability to obtain material, power, equipment and/or transportation, unavailability of essential equipment, goods, supplies or services including internet and other communications link access and abnormal breakdown of any facilities, machinery or equipment.
    14. “Initial Term” means the initial Licence Period to which the Parties have committed set out in the Buying Record.
    15. “Intellectual Property” means industrial or intellectual proprietary rights under statute or at common law or equity which now exist or may exist in the future, including but not limited to copyright, design, trademarks, patents, semi-conductor or circuit layout rights, trade secrets, business or company names, domain names, blog, social networking and other internet titles, or right to apply for any of the rights referred to in above and subsists in all documents, reports, diagrams, code, application interfaces and other materials. The foregoing list is not exhaustive and to avoid doubt it covers Licensed Software code, whether source or object, routines and related programming language, instructions, methods, techniques, links and templates, documents, manuals, diagrams and images including virtualised images of the Application, howsoever stored or hosted.
    16. “Licence Period” means the period of the Customer’s subscription to the Licensed Software.
    17. “Licensed Software” means, collectively, the specific Objective software solution(s) identified in the Customer’s Buying Record including all updates and new releases, plug-ins, adaptors, components, modules, programs, third party software, interfaces and Objective-supplied data.
    18. “Licence Volume” means:
      1. For named user-based subscriptions, the number of allocated named users and/or servers for the Licensed Software stipulated in the Buying Record; and
      2. For enterprise/site-wide subscriptions, the upper limit for the Licensed Software stipulated in the Buying Record.
    19. “Objective” means Objective Corporation Limited ABN 16 050 539 350 a company duly incorporated in the State of New South Wales, Australia and having its registered office at Level 30, 177 Pacific Highway, North Sydney, N.S.W 2060 AUSTRALIA unless a different member of the Objective group of companies is stipulated in the Buying Record.
    20. “Online Account” means the account for the Customer made available by Objective at the Website or other linked web location for the Customer to record relevant details about the Customer’s subscription;
    21. “Party” means a party to this Agreement being Objective or the Customer as identified in the Buying Record.
    22. “Privacy Policy” means Objective’s Privacy Policy set out at objective.com/privacy .
    23. “Registration” and “Register” means the act of signing up to acquire a licence to use the Licensed Software (i.e logging in, creating a password which meets Objective’s security criteria and activating new registration from an email link). To be clear a person registers by designating a specific user ID and password in order to commence use of the Licensed Software as a User.
    24. “Software Order Form” means the Buying Record document setting out the Licensed Software ordered by the Customer, signed by the Customer and Objective, including information on the Licensed Software such as Licence Volume, Licence Period, Charges and Territory and any other conditions as agreed.
    25. “Support Handbook” means the document describing the support of the Licensed Software located at objective.com .
    26. “Support Service” means the particular level of support for the Licensed Software identified in the Buying Record and more particularised in Objective’s Support Handbook.
    27. “Tax” means any GST, VAT, sales, use, withholding, property, excise, service or other tax.
    28. “Tax Invoice” means a properly rendered invoice for the Licensed Software and Support Service compliant with taxation legislation requirements.
    29. “Term” means the Initial Term plus, if applicable, any Extended Term(s).
    30. “User” means an individual person Registered to use the Licensed Software, whether as a Customer in their own right or an allocated named user of a paying Customer entity.
    31. “Virus” means any malicious code affecting a computing device and includes but is not limited to adware, spyware, Trojan horses and worms and other malicious code, whether or not it replicates itself, having the effect of interrupting, diminishing, altering or stopping the operation of the Licensed Software Service.
    32. “Website” means objective.com .
    33. In this Agreement, unless the context otherwise requires:
      1. The singular includes the plural and vice versa;
      2. Headings are used for convenience only and do not affect the interpretation of this Agreement;
      3. A reference to a clause is a reference to a clause of this Agreement;
      4. a clause contains a number of sub-clauses then, unless expressly stated otherwise, each sub-clause is an independent requirement or obligation;
      5. the word “person” means a natural person or any other legal entity whether incorporated or not;
      6. the word “includes” or any form of that word must be construed as if it were followed by the words "without being limited to”;
      7. “month” means calendar month and “year” means calendar year;
      8. “day” means calendar day;
      9. reference to “writing includes any mode of representing and reproducing words in tangible and permanently visible form and includes facsimile and e-mail transmission.
  19. Customers Located Outside Australia
    1. Objective agrees that:
      1. If the Customer is located in New Zealand and their Buying Record shows the Currency for Charges is New Zealand dollars then:
        1. the governing law of this Agreement under clause 17.6 will be New Zealand and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New Zealand; and
        2. the dispute resolution location under clause 16 will be Wellington, New Zealand and the dispute resolution body will be Resolution Institute.
      2. If the Customer is located in the United Kingdom and their Buying Record shows the Currency for Charges is British Sterling, then:
        1. the governing law of this Agreement under clause 17.6 will be England, United Kingdom and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in England, United Kingdom; and
        2. the dispute resolution location under clause 16 will be London, England, United Kingdom and the dispute resolution body will be the Centre for Effective Dispute Resolution (CEDR).
      3. All other Customers located outside Australia will be bound by clauses 1 to 19 inclusive without amendment unless otherwise expressly agreed by Objective in the Buying Record.