1. Definitions and Interpretation
The following definitions apply unless the context requires otherwise.
Additional Charge means a charge in accordance with Go People’s standard rates from time to time, or as otherwise reasonably determined by Go People or agreed with the Sender.
Agreement means these Terms and Conditions and the:
- General Terms found at www.gopeople.com.au/terms/;
- GoNOW Terms found at www.gopeople.com.au/terms-for-senders-gonow/;
- GoSAMEDAY Terms found at www.gopeople.com.au/terms-for-senders-gosameday/;
- GoSHIFT Terms found at https://www.gopeople.com.au/terms-for-senders-goshift/; and
- any other documents incorporated by reference in the Agreement.
Application means Go People’s web and/or mobile software application, which operates a delivery management system, and it includes but is not limited to any and all improvements, developments, modifications, derivatives and variations of such software and/or application from time to time and where the context permits, it includes any Documentation.
Business Day means a day on which banks are generally open for business in New South Wales other than a Saturday, Sunday or public holiday.
Business Hours means 9.00am to 5.30pm Sydney time on Business Days.
Certified Party means a party that Go People has trained in the relevant aspects of the Application.
Commencement Date means the commencement date of this Agreement specified in the Subscription Plan.
Confidential Information means the confidential information of a party and includes information relating to, in the case of Go People:
- its personnel, policies and business strategies;
- the terms upon which the Application and other products have been supplied, installed and/or supported pursuant to this Agreement;
- the pricing and payment terms set out in this Agreement;
- the design and content of the Application and the Documentation; and
- any information made available to the Sender or an Entity via the Application and/or the Website.
Documentation means the authorised user guides and manuals that are delivered or made available by Go People to the Sender for use with the Application.
Driver Limit means the maximum number of Drivers permitted to Use the Application by the Sender or an Entity as specified in the Subscription Plan.
Drivers means the drivers employed or engaged by the Sender or Entity who are rendering delivery services to the Sender and are not Runners.
Employees means employees of the Sender and/or Entities and any other persons approved by Go People.
Entities means the legal entities identified in the Subscription Plan or approved in writing by Go People. For the purposes of interpreting the Licence Agreement, an “Entity” includes a Joint Venture.
Event of Insolvency means:
- a controller, manager, trustee, administrator or similar office is appointed in respect of the Sender or an asset of the Sender;
- a liquidator or provisional liquidator is appointed to the Sender;
- any arrangement is made with the Sender’s creditors;
- the Sender is unable to or fails to pay its debts as and when they fall due;
- a default judgement is ordered against the Sender;
- an application is made, a resolution passed or a meeting convened for the purpose of considering a resolution to wind up the Sender; or
- any other similar event occurs under any law applying to the Sender.
Any of the above terms defined in the Corporations Act 2001, have the meaning assigned in that Act.
Fees means the Plan Pricing, the Maintenance and Support Fees (if any), the Job Fees, and/or any Additional Charges, fees, charges, expenses or payments specified in this Agreement as varied from time to time in accordance with this Agreement.
Force Majeure means a circumstance beyond the reasonable control of a party and which results in that party being unable to observe or perform an obligation on time under this Agreement (other than an obligation to make a payment). Such circumstances include but are not limited to:
- acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, Washaways, explosions, fires and any natural disaster;
- acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
- failure of internet and telecommunication services.
Initial Term means 30 days from the Commencement Date or such other period specified in the Subscription Plan.
Intellectual Property Rights means copyright, trademark, design, patent, semiconductor, circuit layout rights, the right to keep confidential information confidential and any other rights in the nature of intellectual property rights.
Plan Pricing means the pricing and fees associated to the Sender’s use of the Application as specified in the Subscription Plan.
Maintenance and Support Fees means the maintenance and support fees (if any) specified in the Subscription Plan.
Maintenance and Support Services means the maintenance and support services (if any) specified in the Subscription Plan.
New Release means:
- a new release of the Application providing for a significant change in technology; and/or
- a new generally available version of the Application containing corrections of programming errors and/or functional enhancements.
Job Fees means the fees specified in the Subscription Plan for each delivery, job or service or otherwise agreed in writing.
Representative means any officer, employee, agent, consultant, contractor or other representative.
Services means any services performed by Go People pursuant to this Agreement and any other services referred to in the Subscription Plan and Maintenance and Support Services.
Sender means the sender named in the Subscription Plan.
Subscription Plan means the subscription plan selected by the Sender which includes, but is not limited to the Bronze, Silver, and Gold Plans as amended and varied from time to time which is outlined in detail on the Website and includes any Free Trial offered by Go People. For more information, please visit www.gopeople.com.au/pricing.
Terms and Conditions means the terms and conditions set out in clauses 1 to 19 of this document.
Use means to directly or indirectly activate the processing capabilities of the Application, load, execute, access, utilise, store, employ the Application, or display information resulting from such capabilities.
Website means the website pages hosted by the domain gopeople.com.au.
2. Licence Grants and Restrictions
2.1 Subject to the Sender’s compliance with this Agreement, including payment of all Fees, Go People grants to the Sender a non-exclusive, non-transferable licence to access and use the Application for the Sender’s own business purposes during the term of this Agreement.
2.2 The Application may only be used:
- by the Sender and Entities;
- for Drivers up to the Driver Limit;
- for Runners as defined in this Agreement;
- in accordance with this Agreement; and
- in accordance with the Documentation and any written instructions from Go People.
2.3 If the Sender requires an increase in the Driver Limit or to add Entities (subject to Go People’s approval of the Entity), the Sender will provide Go People with a written request. Go People will implement the request within a reasonable time of receiving it in accordance with this Agreement.
2.4 The Sender is responsible for the use, supervision, management and control of the Application and the Documentation. The Sender must ensure that any copy of the Application is permanently deleted from any hardware the Sender or an Entity sells or otherwise disposes of.
2.5 Except as otherwise expressly permitted under this Agreement, the Sender must not (and must not allow a third party, including any Entity) to:
- reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Application or any portion thereof;
- distribute, transfer, grant sub-licences to, or otherwise make available the Application or any portion thereof to third parties, including as an application service provider, service bureau, or rental source, unless otherwise authorised in writing by Go People;
- embed or incorporate in any manner the Application into other applications of the Sender or third parties other than as authorised in applicable Documentation or by Go People in writing;
- create modifications to or derivative works of the Application;
- reproduce the Application;
- attempt to modify, alter, or circumvent any licence control and protection mechanisms within the Application;
- use or transmit the Application in violation of any applicable law, rule, or regulation;
- demonstrate the Application to a competitor of Go People;
- intentionally access, use, or copy any portion of the Documentation or the Application to directly or indirectly develop, promote, distribute, sell, or support any product or service that is competitive with the Application; or
- remove, obscure, or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink, or other designation included on any display screen within the Application (“Go People’s Marks”).
The Sender shall be responsible for all damages and liabilities incurred as a result of such actions.
3. Delivery and Acceptance
3.1 Upon the Sender’s acceptance of this Agreement and payment of any required initial Fees such as the Subscription Plan being paid 30 days in advance, Go People will make the Application available to the Sender for use through delivery of a password protected account. The Application is deemed accepted upon delivery to the Sender, provided that such acceptance shall not in any way impact the warranties as provided in this Agreement.
4. Change Requests
4.1 If the Sender requires any changes or enhancements to the Application, the Sender will provide Go People with a written request.
4.2 If Go People agrees to implement a request to change or enhance the Application, which is a matter in Go People’s sole discretion, Go People will advise the Sender of Go People’s proposal for implementation including the Additional Charges.
4.3 Within 30 days of receipt of Go People’s proposal (or such other time as is agreed), the Sender must notify Go People in writing whether the Sender accepts the proposal, after which the Sender will be deemed to have refused the proposal. If the Sender accepts the proposal the parties will sign a variation in accordance with clause 18.5.
4.4 The Sender acknowledges and agrees that Go People may include any changes, enhancements or developments requested by the Sender in future New Releases.
5. Sender’s Obligations
5.1 The Sender will comply with and will be responsible for:
- creating an account for a Driver via the Website;
- notifying the Driver that he, she or it is required to download the Application onto his, her or its mobile telephone and is required to verify the Driver account;
- sending the Driver a notification of the creation of the Drivers’ account via the Website and/or Application;
- the Drivers’ compliance with the terms and conditions of this Agreement, Go People’s Acceptable Use Policy available via the Application or the Website, and all applicable laws and regulations with respect to use of the Application;
- all payments and/or remuneration to the Drivers as the Website and Application does not facilitate these payments on behalf of the Sender; and
- all loss, damage, costs (including legal costs on an indemnity basis), expenses, claims and liabilities incurred by or claimed against Go People as a result of, whether directly or indirectly, the Sender or its directors, employees, servants, agents and Drivers failing to comply with this clause or breach of the terms and conditions of this Agreement; and
- Go People’s complete indemnity with respect to the matters raised in clause 5.1(f) above.
5.2 The Sender is responsible for procuring, installing, configuring, and maintaining all hardware and operating systems required to run the Application, as set forth in the Documentation.
5.3 The Sender acknowledges that the operation of the Application may not always be completely error free and without interruption. The Sender and Entities should:
- implement data backup and verification measures in accordance with best industry practice; and
- keep in force throughout the term of this Agreement appropriate insurance against any loss that may be suffered in the event of failure, defect or error in the Application. Go People is not liable for any loss suffered by the Sender as a result of a failure to comply with this requirement.
5.4 The Sender may print and make such number of copies of the Documentation as it reasonably requires to use the Application in accordance with this Agreement. All copies are the property of Go People (or its third party licensors) and must contain all proprietary notices that appear on the original copy.
5.5 The Sender is solely responsible for any data, text, files, information, images, graphics, and other content or materials that its Drivers upload to the Application (collectively, “Sender Data”). Go People does not claim ownership of any Sender Data. By submitting and uploading Sender Data, the Sender grants Go People a non-exclusive, worldwide, transferable, irrevocable right and licence to use, store, reproduce, modify, distribute, publicly perform, and publicly display the Sender Data for the purpose of providing the Application and Services to the Sender and for deidentifying, benchmarking and reporting purposes.
6. Go People’s Obligations
6.1 Go People, or its third party hosting provider, will establish and maintain commercially reasonable administrative, physical, and technical safeguards designed to:
- protect the security and confidentiality of Sender Data;
- protect against anticipated threats or hazards to the security or integrity of Sender Data; and
- protect against unauthorised access to or use of Sender Data.
7.1 Without limiting anything else in this Agreement, in order for Go People to perform any Services successfully and in a timely manner, Go People requires the Sender’s timely co-operation, including:
- providing reasonable access to the Sender personnel, materials, information and facilities to assist Go People with its Services;
- arranging access to third parties where applicable;
- ensuring that appropriate back-up, security and virus checking procedures are in place for any computer facilities the Sender provides;
- making senior executives available for consultation on request;
- providing reasonable working facilities for Go People; and
- making decisions promptly to facilitate the performance of the Services.
7.2 Unless expressly agreed to be fixed, any timeframes for the provision of Services (including without limitation any specified in the Subscription Plan) are estimates and are not contractually binding. Estimates of time for completing the Services are given on the assumption (among other things) that Go People receives the co-operation and commitment from the Sender as specified in clause 7.1.
7.3 If the Sender does not perform or delays in performing any of its obligations (including those specified in clause 7.1), Go People is entitled, if it reasonably deems necessary, to vary any timetable and to pass on to the Sender any resulting costs or expenses as Additional Charges. Go People will advise the Sender of any likely or foreseeable delays and give the Sender a chance to rectify these likely delays before Go People applies Additional Charges.
7.4 In the course of providing the Services, Go People will rely on information supplied by the Sender or others. Go People is not obliged to verify the accuracy and completeness of that information. If any information provided is materially incorrect, Additional Charges may apply.
7.5 Go People is entitled to sub-contract any of the Services at its sole discretion.
7.6 Go People may, at the Sender’s request, provide additional consulting services relating to this Agreement for an Additional Charge.
8. Fees and Payment
8.1 The Sender agrees to pay the:
- amount specified in the Plan Pricing with respect to the Subscription Plan selected by the Sender;
- Job Fee with respect to each Job rendered; and
- Subscription fee for the Subscription Plan, unless a free trial has been offered to the Sender by Go People. In the event a free trial has been offered, the Subscription fee will be due and payable in advance and upon the completion of the free trial,
- invoiced every 30 days unless otherwise specified in the Subscription Plan; Without limitation, Additional Charges may apply:
- to any increase in the Driver Limit or Employee numbers;
- to the addition of Entities;
- to the increase in Maintenance and Support Services resulting from (a) or (b) above (if applicable):
- for any work required to be undertaken by Go People to implement a request made under clause 2.3: and
- to reflect an increase in Maintenance and Support Services required as a result of the implementation of a New Release, additional modules, customisations, enhancements or features (if any).
8.2 Except for Additional Charges, which may be invoiced as and when incurred, all other Fees will be invoiced in accordance with the Subscription Plan.
8.3 Go People may have security mechanisms installed into its Application to eliminate piracy of the Application. In using the Application, the Sender acknowledges and understands that the Application may include a security mechanism that can detect the installation or use of the Application including illegal copies of the Application, and collect and transmit data about the use of the Application. The data collected will not include any customer data created in using the Application. In using the Application, you consent to such detection and collection of data, as well as its transmission and use if an illegal copy or access has been detected. Go People also reserves its right to use a hardware lock device, license administration software and/or a license authorization key to control access to the Application. You must not take steps to avoid or defeat the purpose of any such measures.
8.4 Go People reserves the right to seek verification of the Entities, number of Drivers and Employees by carrying out an audit of the Entities, Drivers and Employee numbers at the premises of the Sender and any Entity (“physical audit”) either itself or using an independent third party selected by Go People at Go People’s sole discretion and/or by using any electronic control mechanism designed for this purpose. Go People will give the Sender reasonable notice of a physical audit. The Sender must, and must procure that an Entity must, provide Go People or its nominated representative with access to premises, personnel and computer systems as reasonably required by Go People or its nominated representative to verify the number of Drivers and Employees and that the use of the Application is in compliance with this Agreement (and any other applicable terms). If the Sender or an Entity has exceeded the Driver Limit or the specified number of Employees or is otherwise in breach of the Agreement (or other applicable terms), the Sender must pay all fees, costs and expenses associated with:
- the audit;
- the increase in Driver Limit or Employee or Entity numbers; and
- any increase in Maintenance and Support Services,
as Additional Charges. Go People’s rights under this clause survive termination or expiration of this Agreement.
8.5 Go People is entitled to:
- reimbursement of expenses for travel, accommodation or such other expenses as are properly incurred in the performance of its obligations under this Agreement as Additional Charges and will submit invoices to the Sender for any reimbursements together with all appropriate and reasonable documentation to support the claim. Where requested by the Sender, Go People must obtain the Sender’s written approval of contemplated travel for the performance of the Services prior to incurring any costs and/or other expenses; and
- charge (as Additional Charges) for travel time which is the time taken for any Go People Representative to travel from Go People’s office to the Sender’s office for performance of Go People’s obligations under this Agreement.
8.6 Subject to clause 8.7, the Sender must pay all invoices (without any set off, deduction or withholding whatsoever) within 14 days of the date of the invoice. Go People may charge interest on any amount not paid by the due date at a rate equal to two percent above the Corporate Overdraft Reference Rate of the Commonwealth Bank of Australia from time to time applicable for monthly charging cycles.
8.7 The Sender must notify Go People of any dispute in relation to an invoice within 14 days of the date of the invoice and the reasons for the dispute or the full amount becomes due and payable in accordance with clause 8.6. If the Sender disputes in good faith any amount on an invoice, the Sender must pay the portion of the invoice not in dispute within 14 days of the date of the invoice. If it is agreed that some or all of the disputed amount was properly payable, then the Sender must immediately pay that amount together with interest in accordance with clause 8.6.
8.8 Subject to clause 8.1 to 8.7,
- prior to the conclusion of the Initial Term, Go People will not increase the Fees; and
- after the conclusion of the Initial Term, Go People may increase the Fees by giving the Sender written notice. Changes in Fees will be effective 60 days after the notice has been sent to the Sender.
9. Goods and Services Tax
9.1 In this clause, terms used have the meaning given to them by the GST Law as defined in Section 195-1 of the A New Tax System (Goods and Services Tay) Act 1999 (the “GST Act”).
9.2 If a party to this Agreement (the “Supplier”) makes a supply under or in connection with this Agreement and is liable by law to pay GST on that supply, the consideration otherwise payable by the recipient of the supply will be increased by an amount equal to the GST paid or payable by the Supplier.
9.3 If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party is the amount of the reimbursable expense net of any input tax credit or reduced input tax credit to which the other party is entitled in respect of the reimbursable expense.
9.4 If a party to this Agreement has the benefit of an indemnity for a cost, expense, loss or outgoing (“indemnified cost”) under this Agreement, the indemnity is for the indemnified cost net of any input tax credit or reduced input tax credit to which that party is entitled in respect of the indemnified cost.
9.5 Each party agrees to do all things, including providing tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, set-off, rebate or refund in relation to any amount of GST paid or payable in respect of any supply under this Agreement.
9.6 Subject to the operation of this clause, all amounts in this Agreement are GST exclusive.
10.1 Except as provided in this clause, a party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
10.2 A party is not in breach of clause 10.1:
- in circumstances where it is legally compelled to disclose the other party’s Confidential Information; or
- if it discloses Confidential Information (other than of a technical nature) to its related companies, solicitors, auditors, insurers and accountants or in the case of Go People, to third parties solely for the purposes of performing this Agreement.
10.3 Each party must take all reasonable steps to ensure that its employees, agents and sub-contractors do not make public or disclose the other party’s Confidential Information.
10.4 Each party agrees to promptly notify the other party of any unauthorised access to or disclosure of the Confidential Information.
10.5 The receiving party agrees that any breach of this clause may cause irreparable harm to the disclosing party, and such disclosing party shall be entitled to seek equitable relief in addition to all other remedies provided by this Agreement or available at law.
10.6 The Sender must on demand return to Go People any Documentation supplied by Go People in connection with this Agreement.
11.1 Subject to clauses 11.2, 11.4 and 18.6 and otherwise to the extent permitted by law:
- the total aggregate liability of Go People to the Sender for loss or damage arising from or in relation to this Agreement, whether arising from breach of contract, tort (including negligence), in equity or otherwise, is limited to the Plan Pricing paid for the 6-month period immediately preceding the event giving rise to the loss or damage;
- Go People is not liable to the Sender and the Sender has no right of set off, for:
- any loss of data, goodwill, interest, revenues, profits, contracts or any inaccuracy of data; or
- any indirect, special, incidental, consequential, exemplary, punitive, or aggravated damages or loss; or
- any internal costs and expenses (whether director indirect) howsoever incurred,
arising from the negligence of, or any breach of this Agreement by, Go People or its Representatives even if Go People has been advised of the possibility that such damages may occur,
- Go People is not liable for loss or damage arising from third party products or services.
11.2 Nothing in this Agreement limits Go People’s liability to an individual for death or personal injury caused by a negligent or wilful act or omission of Go People or its Representatives.
11.3 No warranty, condition or term (“term”) applies to this Agreement unless it is set out in this Agreement or is implied by law and cannot be excluded, modified or restricted. Without limiting clause 11.4:
- the Application is supplied on an “as is” basis; and
- the Application is suitable for use in Australia only. If the Sender intends to use the Application in, or in relation to, any other jurisdiction it does so at its own risk.
- any term is implied into this Agreement by law, and the law prohibits the exclusion, restriction or modification of that term or liability under it, then that term shall be deemed to be included in this Agreement;
- a statutory guarantee applies to goods or services supplied under this Agreement;
then, to the extent permitted by law, Go People’s liability for breach of that term or guarantee is limited to (at Go People’s option):
- in relation to services, re-supplying the services or paying for them to be re-supplied; and
- in relation to goods, re-supplying them, or paying for having them re-supplied.
11.5 The Sender will at all times indemnify and hold harmless Go People and its Representatives from and against any loss, costs (including reasonable legal costs and expenses) or liability incurred or suffered by Go People or its Representatives arising from any proceedings against Go People or its Representatives where such loss, costs or liability was caused by:
- a breach by the Sender or an Entity of its obligations under this Agreement (or any other applicable licence terms);
- any wilful, unlawful or negligent act or omission of the Sender, an Entity or their Representatives; or
- a claim by a third party alleging an infringement of that third party’s Intellectual Property Rights if such infringement relates to an actor omission of the Sender, a User, an Entity or their Representatives.
12. Term and Termination
- This Agreement is for the Initial Term.
- If the Sender has paid all amounts due and owing to Go People and is not in breach of this Agreement, this Agreement will continue and remain in full force and effect, unless otherwise terminated in accordance with clauses 12.2 or 12.3.
12.2 Immediate Termination
- Either party may terminate this Agreement effective upon written notice if the other party has an Event of Insolvency.
- Go People may terminate this Agreement or any Subscription Plan effective upon written notice if:
- Go People is required to do so by law; or
- the provision of the Application to you by Go People is, in the opinion of Go People, no longer commercially viable or has become impractical or unfeasible.
12.3 Termination with notice
- Termination by the Sender
- Prior to the conclusion of the Initial Term, the Sender may terminate this Agreement for any reason. If the Sender does so, the Sender will be liable to pay the Early Termination Fee as set out in the Subscription Plan.
- After the conclusion of the Initial Term, the Sender may terminate this Agreement:
- if Go People breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
- for any reason by providing Go People with 60 days’ written notice.
- Termination/Suspension by Go People
- Go People may, at its option, suspend all Licences for the Application and Services provided to the Sender or terminate this Agreement:
- if the Sender fails to pay a Fee that remains overdue after first providing the Sender with ten (10) days’ prior written notice. Any suspension by Go People under the preceding sentence will not relieve the Sender of its payment obligations hereunder;
- if the Sender breaches this Agreement and fails (or is unable) to cure the breach following 30 days’ written notice; or
- for any reason by providing the Sender with 60 days’ written notice.
- Go People may, at its option, suspend all Licences for the Application and Services provided to the Sender or terminate this Agreement:
12.4 The Sender must notify Go People of:
- any change to the Sender’s relationship with an Entity; and
- any Entities to which the Agreement is no longer to apply.
12.5 Go People reserves the right to terminate an Entity’s right to use the Application after receiving a notice under clause 12.4(a) or if the Entity breaches a term of this Agreement.
12.6 On the termination or expiry of this Agreement:
- the Sender and any Entities must no longer use the Application and the Documentation;
- the Sender must pay any outstanding Fees to Go People;
- other than as provided in clause 14.4, Go People may retain any moneys paid;
- Go People may charge a reasonable sum for work performed up to termination in respect of which work no sum has previously been invoiced or paid;
- Go People will be released from any further obligations under this Agreement;
- either party may pursue any additional or alternative remedies provided by this Agreement or law;
- each party must return any property (including Confidential Information) of the other; and
- all copies of the Application and any Documentation must be returned to Go People and permanently erased from all equipment and storage devices used by the Sender and the Entities, regardless of whether such equipment and storage devices are owned by the Sender, the Entities or a third party.
12.7 Any clauses of this Agreement which are capable of having effect after the expiration or termination of this Agreement will continue to remain in full force and effect.
13. Personal Information
13.1 Disclosure of personal information to Go People is subject to the Privacy Act 1988 (“Privacy Act”). Accordingly, the Services are provided on the understanding that the Sender (and any Entities) will only disclose personal information about an individual to Go People:
- for a purpose related to the performance of the Services;
- provided the Sender (or Entity) has made all disclosures required under the Privacy Act;
- provided the Sender (or Entity) obtained any consents required under the Privacy Act to allow Go People and its Representatives to handle the information; and
- provided to do so would not otherwise breach the Privacy Act.
13.2 As Go People relies on the Sender and an Entity to fulfil the obligations in clause 13.1, the Sender indemnifies Go People and its Representatives against any claim, loss or expense resulting from the failure of the Sender or an Entity to make any disclosure or obtain any consent required under the Privacy Act or to otherwise comply with the Privacy Act.
13.3 If the performance of the Services requires a third party to supply personal information to Go People on the Sender’s request, it is the Sender’s obligation to ensure that the third party complies with clause 13.1 and the Sender indemnifies Go People against any claim, loss or expense resulting from that party’s failure to do so, or to otherwise comply with the Privacy Act.
14. Intellectual Property
14.1 Any Intellectual Property Rights:
- in the Application;
- database(s) design;
- in the Documentation;
- in any changes, modifications, developments or enhancements made to the Application or the Documentation by Go People or anyone else (including Sender specific modifications);
- arising from Go People’s provision of the Services; and
- on the Website,
are owned and are the sole property of Go People or its licensors.
14.2 Go People indemnifies the Sender against any finally awarded damages or settlement amounts approved by Go People arising out of or in connection with a claim that the use of the Application in accordance with this Agreement infringes a third party’s copyright or an Australian patent, provided that the Sender:
- notifies Go People immediately of any infringement or claim of which it is aware and does not make any admissions without Go People’s prior written consent;
- at Go People’s request and expense, allows Go People to conduct and/or settle all negotiations and litigation resulting from any such claim,
- assists and fully co-operates with Go People in the defence or settlement of the claim; and
- does not take and ensures that no Entity takes any action that prejudices Go People’s ability to defend or settle the claim.
14.3 Notwithstanding anything to the contrary in this Agreement, Go People is not responsible or liable for any infringement of a third party’s Intellectual Property Rights if the infringement would not otherwise exist except for:
- the use of the Application with any other software or equipment;
- any corrections to or modifications of the Application database other than by Go People (even if performed by a Certified Party);
- modifications to the Application in compliance with the Sender’s specifications or requirements;
- a failure to promptly implement a New Release made available by Go People;
- any breach of this Agreement by the Sender or an Entity, or any unauthorised use, access or modification to the Application by the Sender, an Entity or a third party,
and in such circumstances Go People’s obligations under clause 14.2 do not apply.
14.4 If the Application is or is likely to become the subject of a claim of infringement, Go People may at its sole discretion:
- procure for the Sender and any Entity the right to use the Application or the affected part of it;
- replace or modify the Application to make it non infringing; or
- require the return of the Application and refund to the Sender any Plan Pricing paid for the Application for the remainder of the then current term.
14.5 If Go People’s use or possession of the Application is determined by an independent tribunal of fact or law to infringe the Intellectual Property Rights of a third person, the Sender and any Entity must cease using the Application immediately and Go People will refund to the Sender any Plan Pricing paid for the remainder of the then current term.
14.6 To the extent permitted by law and subject to clause 18.6, clauses 14.2 to 14.5 state Go People’s entire liability and the Sender’s sole and exclusive remedies for any claim of infringement of third party’s rights.
15.1 Other than with Go People’s prior written consent, the Sender will not hire Go People’s Person for employment or under a contract for services, either directly or indirectly (including by a related body corporate or through a recruitment or staffing agency). For the purposes of this clause “Go People’s Person” means any person who is either an employee or contractor of Go People, either during or for a period of 360 days after termination of, this Agreement or for 360 days after that person’s employment or engagement with Go People is terminated.
15.2 The Sender must promptly notify Go People if a Go People’s Person seeks to be employed or contracted by the Sender (or a related body corporate).
15.3 If despite clause 15.1, the Sender hires a Go People’s Person without Go People’s consent, the Sender must immediately pay to Go People an amount equal to thirty percent (30%) of the person’s remuneration on an annualised basis as at the date of the person’s termination with Go People.
15.4 The Sender acknowledges and agrees that this provision is reasonable having regard to Go People’s need to protect its intellectual capital and confidential information. Without limiting Go People’s right to compensation under clause 15.3, the Sender acknowledges that Go People may seek interlocutory relief to prohibit or restrain the Sender from any breach or threatened breach of this clause.
15.5 A breach of this clause is deemed a material breach of the Agreement for the purposes of termination.
16.1 Go People may identify the Sender (and an Entity) as a customer of Go People and a user of the Application on Go People’s published customer lists, web site, and in its marketing and advertising materials and announcements. Go People may also include non-confidential information about the Sender’s business and implementation of the Application. Go People may release updated information from time to time.
17. Dispute Resolution
Except as is expressly provided for in this Agreement, if there is a dispute or difference between the parties arising out of or in connection with this Agreement (Dispute), then within five Business Days of a party notifying the other party in writing of the Dispute, a senior representative from each party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
- If the Dispute is not settled within thirty (30) days of notification under clause 17.1, the parties must submit the Dispute to mediation administered by the Australian Commercial Disputes Centre.
- The Australian Commercial Disputes Centre’s Guidelines for Commercial Mediation apply to any mediation under this Agreement and the parties must comply with those rules.
- Any mediation meetings and proceedings under this clause must be held in Sydney, New South Wales.
17.3 Court proceedings and other relief
A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this clause, unless the party seeks injunctive or other interlocutory relief.
17.4 Continuation of rights and obligations
Despite the existence of a dispute or difference each party must continue to perform this Agreement.
Any notice, demand, consent or other communication (a “Notice”) given or made under this Agreement:
- must be in writing and signed by a person duly authorised by the sender;
- must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail), by hand, by email, or by fax at the address, email, facsimile number shown in the Subscription Plan;
- will be conclusively taken to be duly given or made:
- in the case of delivery in person, when delivered;
- in the case of delivery by post, seven Business Days after the date of posting;
- if by email, on the earlier of the sender receiving an automated message confirming delivery or, provided no automated message is received stating that the email has not been delivered, three hours after the time the email was sent by the sender, such time to be determined by reference to the device from which the email was sent,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or at a time that is later than 5.30 pm in the place to which the Notice is sent, it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.
- The terms of this Agreement shall be binding on the parties and their successors.
- Go People or the Sender may assign its rights and obligations under this Agreement:
- to a third party if any part of the business of Go People or the Sender is sold or transferred to that third party; and/or
- provided that Go People or the Sender (as applicable) can demonstrate that the assignee is able to perform its obligations under this Agreement.
Go People or the Sender may not otherwise assign its rights under this Agreement without the consent of the other party and such consent will not be unreasonably withheld or delayed.
- Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void.
18.3 Further assurances
Each party must do anything necessary or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.
18.4 Entire Agreement
The Agreement and any variations to it embody the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations or warranties (“other understandings’) in relation to the subject matter of this Agreement are superseded by this Agreement. The Sender acknowledges and agrees that in entering into this Agreement it is not relying on any other understandings (including any express warranties) which are not expressly set out in this Agreement.
This Agreement may only be modified or supplemented by a written document executed by an authorised representative of each party.
18.6 Compliance with the Australian Consumer Law
If the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applies to any supply of goods or services under this Agreement, nothing in this Agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Competition and Consumer Act 2010.
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
- Any provision in this Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party.
- Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intention of the Parties.
18.9 Remedies cumulative
The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
18.10 No Partnership or Agency
Nothing contained or implied in this Agreement shall be construed to place the Parties in the relationship of partners, joint venturers, principal and agent, or employer and employee. Neither Party shall have the power to assume, create, or incur liability or any obligation of any kind, express or implied, in the name of or on behalf of the other Party by virtue of this Agreement.
18.11 Governing law & Jurisdiction
- This Agreement is governed by and is to be construed in accordance with the laws of New South Wales.
- With respect to any legal action or proceedings which may be brought with respect to this Agreement or any transaction contemplated by this Agreement (each, a Relevant Action) with respect to any Sender in Australia, each party irrevocably and unconditionally:
- submits to and accepts, for itself and in respect of its assets, the non-exclusive jurisdiction of courts exercising jurisdiction in Sydney New South Wlaes in connection with matters concerning this Agreement; and
- agrees that it will not object to the venue or claim that the Relevant Action has been brought in an inconvenient forum.
- The United Nations Convention on Contracts for the International Sale of Goods (and any adopting legislation) does not apply to this Agreement.
18.12 Limitation of action
Subject to clause 18.6 and to the maximum extent permitted by law, other than in relation to a claim for breach of Go People’s Intellectual Property Rights, no claim can be made under this Agreement more than two (2) years after;
- the discovery of the circumstances giving rise to the claim; or
- the effective date of termination of this Agreement.
18.13 Order of Priority
Where there is any conflict between documents comprising this Agreement, they will prevail in the following order (subject to any variations agreed in accordance with clause 19.5):
- the Subscription Plan;
- these Terms and Conditions;
- any additional documents described in the Agreement in the order listed in these Terms and Conditions.
- Other than in relation to clause 18.1, Go People may communicate electronically with the Sender.
- Electronically transmitted information is not guaranteed to be secure or error free and can be adversely affected or unsafe to use. Go People will not be liable in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information.
Nothing in this Agreement will prevent or restrict Go People from providing services to customers other than the Sender. Without limiting the foregoing, Go People may use all:
- skill and knowledge acquired; and
- ideas and methodologies developed,
during the course of performing the Services for any purposes, including to perform services for other Senders.
18.16 Force Majeure
- Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of a Force Majeure Event.
- The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.