Agreement	means any Customer Contract, including these Terms.
Calculation Basis	means the Licence Fee is based on a percentage of annual Customer revenue, subject to a minimum annual fee. Numbers of users, staff and Community are unlimited and do not directly affect the calculation.
Claim	means any claim, notice, demand, action, proceeding, litigation, investigation or judgment, howsoever arising, whether based in contract, tort, statute or otherwise.
Commencement Date	means the Licence Start Date.
Community	means Customer suppliers, clients and their relatives or others defined by the Customer to have a valid need to access ionMy.
Confidential Information	of a party means the information of a party which relates to its own business operations or the subject matter of this Agreement and is by its nature confidential to that party, or is communicated to the other party as confidential, and in the case of ThoughtWare, includes information relating to: ThoughtWare Materials; and the terms of this Agreement, but does not include any information that: is in the public domain other than as a result of a breach of this Agreement; is independently developed by a party without reference to the Confidential Information of the other party; or is disclosed to a party by a third party having the right to do so.
Consequential Loss	means any loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of or damage to goodwill, loss of business reputation, future reputation or publicity, loss of use, loss of interest, losses arising from Claims by third parties, loss of or damage to credit rating, loss of anticipated savings, loss of contract, whether direct, indirect or consequential, and any other loss, damage or cost incurred that is indirect or consequential.
CPI	means the Australian Consumer Price Index from the Australian Bureau of Statistics (weighted average of 8 capital cities) - see www.abs.gov.au.
CPI Increase	means the percentage CPI increase over the past twelve months as of the last published CPI available on the review date.
Customer Contract	means any Licence Agreement, Project Agreement, SoW, contract or Order signed by ThoughtWare and Customer.
Customer Data	means all data that is created or processed by the Customer using the Software
Customer Materials	means any data, materials, inputs, information or equipment the Customer must provide to ThoughtWare in order for ThoughtWare to provide ionMy or Support Services, including any set out in a Customer Contract.
Customer Systems	means software, hardware, networks, equipment and infrastructure used, owned or controlled by the Customer, other than those provided by ThoughtWare.
Defect	means a failure of the Software to comply with the specifications or other requirements for the Software set out in the Agreement or any published specifications of ThoughtWare relating to the Software.
Deliverables	means any materials specified as deliverables that ThoughtWare is providing to the Customer under any Customer Contract.
Eligible Data Breach	has the meaning given to that term in the Privacy Act.
Force Majeure	means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to: labour strikes, acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any other natural disaster; and acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution.
Go Live	means when the Software has been made operational and available for its intended users to begin using it for real world tasks.
Help Desk	means the email help desk facility, the contact details of which are set out in the Customer Contract.
Hosting	means server infrastructure and hosting on which Customer's ionMy is installed.
Integration	means any automated process or interface for data sharing between ionMy and other Customer systems.
Integration Maintenance Fee	means the annual fee for maintaining and supporting each Integration specified in the Customer Contract, plus GST.
Intellectual Property Rights	means copyright, trade mark, design, patent, semiconductor or circuit layout rights and other proprietary rights existing anywhere in the world, whether created before, on or after the Commencement Date.
ionMy Licence Fee	means the portion of the annual fees described as "ionMy Licence Fee" in the Licence Agreement.
Licence Agreement	means the primary Customer Contract for provision of ionMy to the Customer.
Licence Fee	means the annual licence fee specified in the Licence Agreement, plus GST.
Licence Period	means the period so specified in the Licence Agreement, as may be extended in accordance with clause 2.2 of these Terms.
Licence Start Date	means the date so specified in the Licence Agreement.
Loss	means any losses, liabilities, damages, costs, charges or expenses, fines and penalties.
Managed Services Fee	means the annual fee charged for maintaining and/or managing the Hosting specified in the Customer Contract, plus GST.
Personal Information	has the meaning given to it in the Privacy Act.
Personnel	means the directors, officers, employees, agents and subcontractors of a party.
Privacy Act	means the Privacy Act 1988 (Cth).
Services	means services provided by ThoughtWare to the Customer including software Licences, Support Services and any services identified in a Customer Contract.
Services Rate Card	means the current Professional Services Rate Card.
Software	means the governance, risk management and compliance software solution known as 'ionMy', including associated supporting documentation (such as training guides) and any update or new release of the ionMy software from time to time.
Standard Forms	means the set of general forms for governance, risk management and compliance provided with the Software.
Statement of Work or SoW	means a Customer Contract identified as a Statement of Work between ThoughtWare and Customer for provision of ionMy products and/or services. If an SoW is referred to but does not exist, it means the relevant Customer Contract.
Support Services	means the Support Services described in clause 5.1 of these Terms.
System Administrators	means employees of the Customer who have been nominated as authorised 'System Administrators' or 'super users' by the Customer, have attended the relevant ThoughtWare training and been approved by ThoughtWare, and have the skills to: manage and maintain system settings, configuration and user-controlled IT infrastructure and databases; support the operation of the Software, ensure data integrity and user compliance, and assist with basic troubleshooting.
ThoughtWare Materials	means any material (including software, documentation and data) created or owned by ThoughtWare, or provided by ThoughtWare to the Customer in the course of ThoughtWare performing its obligations under the Licence Agreement, whether existing at the Commencement Date or created or acquired by ThoughtWare after the Commencement Date.
Variation Trigger	means a change to the Calculation Basis of 10% or more in either direction since the Fee was last calculated.

2.1 Term

1. For a Licence Agreement, the Term starts on the Licence Start Date and continues for the Licence Period or until terminated by either party in accordance with the Customer Contract or these Terms.
2. For a Hosting Agreement, the Term begins at the Licence Start Date and continues until License Termination, though the class of hosting may change according to clause 4.5 of these Terms.
3. For a Project (e.g. Paid Support Services in Clause 5 of these Terms), the Term starts when the upfront payment is received as cleared funds or when specified in the Customer Contract, and continues until completed or terminated by mutual written agreement.

2.2 Automatic Licence Renewal

1. On expiry of the initial Licence Period, the Licence Period shall be extended for further successive periods of one (1) year unless the Licence is terminated per clause 8.2 or 8.3 of these Terms.
2. The Licence Fee for each subsequent Licence Period will be adjusted in accordance with clause 6.3 of these Terms.

3.1 Grant of Licence

For the Licence Period, subject to the terms and conditions of the Customer Contract, ThoughtWare grants Customer a non-exclusive, non-transferable licence to access and use the following intellectual property in the ordinary course of its business:

1. the Software;
2. any improvements, modifications or enhancements to the Software released through the Licence Period; and
3. any Standard Forms provided to the Customer with the Software.

3.2 Licence Conditions

1. The Software may only be used pursuant to this Agreement:
   • by the Customer and its Personnel and Community; and
   • within the Customer's local intranet, domain or secure VPN.
2. The Customer must not copy, alter, modify, transfer, sub-license, merge or reproduce the Software except to the extent otherwise authorised by the Customer Contract. The Customer must notify ThoughtWare immediately upon becoming aware of any unauthorised use or copying of any part of the Software or Standard Forms.
3. The Customer may make such limited copies of the Software and Standard Forms as strictly necessary for the Customer's prudent business continuity and backup purposes.

3.3 Modifications

If the Customer modifies or alters the Software or Standard Forms:

1. all costs associated with the modifications or alterations or costs arising out of the investigation of the effect of proposed modifications or alterations will be borne solely by the Customer; and
2. the Customer will fully indemnify ThoughtWare against all liability that ThoughtWare may incur if such modifications or alterations infringe any Intellectual Property Rights of a third person or otherwise cause ThoughtWare to suffer Loss.

3.4 Reverse engineering

The Customer must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software or any other Deliverable.  

The Software can (only) be hosted on a Multi-Tenant or Single-Tenant server (AWS) administered by ThoughtWare, or Self-Hosted on the Customer's own infrastructure.

4.1 Multi-Tenant Server

If Customer is hosted on ThoughtWare's multi-tenanted platform:

1. the Customer will not be charged Hosting or Managed Services Fees (these fees are effectively included in the ionMy Licence Fee) unless Customer's annual revenue exceeds $25M;
2. the Customer agrees that ThoughtWare may at its sole discretion conduct routine scheduled maintenance of the Hosting Services, during which time the Hosting Services may not be available;
3. ThoughtWare will notify the Customer at least 5 days in advance of any scheduled maintenance;
4. If an urgent maintenance issue affecting the Customer arises, ThoughtWare will immediately notify the Customer and use reasonable efforts to ensure any disruption is kept to a minimum; and
5. The Customer agrees to co-operate and provide any reasonable assistance requested by ThoughtWare during scheduled and emergency maintenance periods.

4.2 Single-Tenant Server

If Customer is hosted on their own single-instance server provided via ThoughtWare:

1. Customer agrees to pay the full cost of providing the server in advance plus a Managed Services Fee, generally at the same time(s) as their Licence Fee. This "full cost" may be:
   • An agreed fixed fee (which may be varied if actual costs change by 10% or more); or
   • Actual costs charged to ThoughtWare, in which case invoice(s) for the estimated amount will be issued in advance and any corrections applied to the next Hosting invoice or upon Termination of the Licence.
2. Customer agrees that ThoughtWare may apply regular scheduled maintenance including upgrades to their server at a frequency, day and time of day compatible with ThoughtWare's requirements (including the schedules of third party providers) (Customer to be notified at least 5 days in advance of any changes to this schedule), but if that is incompatible with the Customer's processes different scheduling may be agreed provided that:
   • Customer will allow and enable such access at a suitable frequency; and
   • Customer will pay any extra expenses incurred (e.g. third-party charges, surcharges, overtime) at cost.
3. ThoughtWare will notify the Customer at least 5 days in advance of any other scheduled maintenance, and Customer agrees to enable such access when requested or as soon as practicable.
4. If an urgent maintenance issue affecting the Customer arises, ThoughtWare will immediately notify the Customer and use reasonable efforts to ensure any disruption is kept to a minimum.
5. The Customer agrees to co-operate and provide any reasonable assistance requested by ThoughtWare during scheduled and emergency maintenance periods.
6. If the Hosting fees are not paid by their due date and such non-payment is not remedied within two weeks of notice, ThoughtWare reserves the right to move the Customer from Single-Tenant Hosting to Multi-Tenant Hosting.
7. If Single-Tenant Hosting is stopped for any reason (other than by ThoughtWare default) while ThoughtWare is liable for any remaining hosting charges (including non-cancellable supply and early termination charges), the Customer must pay those charges.

4.3 Self-Hosted Server

If Customer hosts the Software on its own infrastructure, the Customer:

1. must provide a server to at least the published minimum specification, or as otherwise notified by ThoughtWare from time to time;
2. is responsible for securing and maintaining its server environment to enable the secure operation of the Software;
3. is responsible for maintenance and uptime of its server database, internet connection and local network;
4. is responsible for maintaining its backups, disaster recovery and business continuity;
5. acknowledges that ThoughtWare cannot support outdated Software or hosting systems and will allow and enable installation of all Software (including third party components or prerequisites) version upgrades and patches within four weeks of release;
6. will, within a reasonable time frame, allow and enable remote access by ThoughtWare staff to Customer's instance of ionMy for any required work; and
7. acknowledges that ThoughtWare will charge a Managed Services Fee for maintaining the Software on Customer's server.

4.4 ThoughtWare Hosting Service and Limitations

1. ThoughtWare-provided Hosting Services (Multi- or Single-Tenant) are comprised of ThoughtWare:
   • hosting the Software and Customer Data;
   • securing and maintaining its server environment to enable the secure operation of the Software; and
   • hosting as a managed service; and where
   • hosting is in an Australian ISO27001 facility, with backups and data retained within Australia (Sydney, NSW).
2. ThoughtWare will use all reasonable efforts in providing the Hosting Services, however:
   • ThoughtWare does not warrant that the Hosting Services provided will be uninterrupted, error free, lag free or fit for any specific purpose;
   • The Customer is solely responsible for defects in its Customer Data; and
   • ThoughtWare is not responsible for any defects, delays or interruptions to the Hosting Services or equipment caused by the delays, action or inaction of any third parties such as hardware suppliers or installers, other carriers, internet service providers, telecommunications companies or service providers or Force Majeure events.
3. If the Customer requires any technical or support work outside the scope of the Hosting Services, ThoughtWare may upon request provide such services on a time and material basis and according to the Services Rate Card; and
4. if the Customer is using an Identity Provider for Single Sign On that requires a new connector/interface to be developed, this will be scoped and quoted according to the Services Rate Card; and
5. for any additional environments (e.g. Training, Testing) requested by the Customer, an annual fee of $2,400 plus GST will be charged per environment, for all Server classes.

4.5 Hosting Variation

1. The Server class (Multi, Single or Self) may be changed at any time by mutual agreement, subject to any applicable fees, after which the new hosting type will continue until Licence Termination or further changes are agreed.
2. If such a change is away from Single-Tenant Hosting, additional fees may apply as per clause 4.2.7.

4.6 ThoughtWare Hosting Inclusions

Subject to Clause 4.4, ThoughtWare hosting (Multi or Single Instance) includes these services:

1. Database Management:
   • 24x7 advanced database monitoring.
2. Patch Management:
   • Critical patches to secure vulnerabilities applied ASAP;
   • Scheduled patching aligned with Microsoft releases (monthly, currently every 3rd Wednesday);
   • Post update testing.
3. Backup Management:
   • Backup execution monitoring.
   • Optional Restore testing: not part of standard package but can be scheduled for additional fees (available for Single instances only).
4. Disaster Recovery:
   • Customer advised RPO of 15 minutes and RTO of 4 hours during business hours;
   • Full database backup scheduled daily at 12:30 AM;
   • Transaction log backup scheduled every 25 minutes from 12:00 AM;
   • AWS server backup scheduled daily at 3 AM;
   • Recovery steps include restoration of the most recent backup to new instances if required and application of database transaction logs.
   • Optional Annual Disaster Recovery Test: not part of standard package but can be included for additional fees (available for Single instances only).
5. Annual Penetration Testing.
6. Dedicated hosting environment in AWS comprising:
   • Web Server(s);
   • Database Server(s);
   • MS-SQL licence;
   • Cloudfront;
   • Cloudwatch or equivalent/better;
   • Web Application Firewall;
   • Application Load Balancers (where more than one web server, currently Multi only);
   • S3 storage;
   • Route53;
   • SMTP for ionMy messaging;
   • Anti-Virus software licence(s).
   • Optional Network vulnerability assessment (for Single instances only, if requested in addition to or instead of Penetration Testing):
     • Scan endpoints that are internet facing (URL/DNS address/IP);
     • Scans are based on client needs - can be done quarterly/yearly/6 monthly depending on requirements;
     • Requires additional monthly fee to be added to the software and tools costs, in terms of engineering effort to perform the scans, produce reports etc.

5.1 Included Support Services

1. ThoughtWare will support and maintain the Software to ensure it operates according to its specifications. Particularly, ThoughtWare will:
   • provide Help Desk access to System Administrators;
   • correct Defects by means of remote access and/or on-site attendance; and
   • maintain existing interfaces between the Software and third party systems as built by ThoughtWare.
2. ThoughtWare will provide the Support Services in response to a report by System Administrators of a suspected Defect or error in the Software, which Defect or error allegedly causes the Software to no longer operate in accordance with its specifications, noting that:
   • ThoughtWare will not accept support requests from End Users other than System Administrators. End Users must log support requests with the System Administers in the first instance; and
   • If a System Administrator is unable to resolve a support request, and the support request relates to a suspected Defect or error in the Software, the System Administrator may escalate the support request to ThoughtWare by contacting the Help Desk.
3. Subject to payment of the applicable Integration Maintenance Fee, ThoughtWare will maintain third party Integrations in accordance with the specifications agreed upon at the time each Integration is built. The Customer is responsible for validating that all source data used by the Software for each Integration accords with ThoughtWare's approved configuration.
4. ThoughtWare may charge additional fees for any on-site attendance requested by the Customer that is found to relate to issues outside ThoughtWare's control, including any of the out of scope support described in clause 5.2 of these Terms.

5.2 Non-Included Support Services

1. The Included Support Services ThoughtWare is to provide under this agreement do not include correction of errors or Defects caused in whole or in part by:
   • changes to the Customer's inputs into the Software, including those arising from changes to the Customer's organisational structure, processes or business requirements;
   • any changes to interdependent systems;
   • modification, revision, variation, translation or alteration of the Software not authorised by ThoughtWare;
   • use of the Software by a person not authorised by ThoughtWare;
   • third party Software or equipment;
   • a failure of the Customer to ensure End Users and System Administrators have met ThoughtWare's minimum training requirements;
   • incorrect use of the Software by the Customer or its End Users;
   • any Harmful Code, except to the extent it was introduced by ThoughtWare; or
   • any failure or refusal of the Customer to accept or implement an update or new release or any other Support Services.
2. ThoughtWare may (at its discretion) provide services to correct defects caused by the issues referred to in the previous subclause of this clause for an additional fee charged in accordance with the Services Rate Card.
3. For clarity, the following services are also expressly excluded from the scope of Included Support Services but may be agreed under a separate Customer Contract for Paid Support Services:
   • implementation and training;
   • customisations;
   • building Integrations between the Software and third party systems; and
   • changes to configuration of the Software required as a result of changes to the Customer's business requirements or organisational structure or changes to interdependent systems.

5.3 Paid Support Services

Paid services to support ionMy and its Customers are provided at the rates published in our Services Rate Card and include:

1. Standard projects such as configuration, training, data migration and reports development: Consultant rates;
2. Large or complex projects and implementations: Project Directors, Project Managers and/or Senior Consultant rates;
3. Data entry (keying in data only when any necessary configuration is already done) is also available at lower rates;
4. Custom programming or development, including specially requested features and Out-of-scope Support is quoted case by case;
5. Paid Support Services will be quoted on a fixed quote or Time and Materials basis as agreed, depending on the needs and scope of the project.
6. In addition to the fees, Customer must pay any expenses ThoughtWare pays on Customer's behalf in the course of performing the Services and, if on-site visits are required, travel costs will be added as per clause 6.3.6 of these Terms.

5.4 Performance

1. ThoughtWare agrees to provide Services and Deliverables in a timely manner in accordance with reasonable industry practice and to the standards and milestones (if any) of the project Customer Contract. However, ThoughtWare is not responsible for delays caused by:
   • the Customer's delay in providing the required Customer Materials or other instructions or information necessary for ThoughtWare to undertake the Project Services;
   • changes in scope (whether requested by the Customer, or required to cater for a change in circumstances); or
   • a Force Majeure event.
2. If any of the events in 5.4.1 occur, ThoughtWare may, by written notice to the Customer, extend the date for delivery of the Deliverables as reasonably required.
3. Unless otherwise specified in the Customer Contract, ThoughtWare will provide the Project Services during Business Hours, from ThoughtWare's own premises and/or locations, or remotely.
4. ThoughtWare will use reasonable efforts in providing the Project Services, however other than as set out in this Agreement, to the fullest extent permitted at law:
   • ThoughtWare does not warrant or guarantee the Deliverables for any fitness of purpose, performance, or compatibility other than as set out in the Customer Contract.
   • ThoughtWare does not take any responsibility for defects, delays, or interruptions caused by:
     • any acts, omissions or delays on the part of the Customer or its Personnel in providing the Required Customer Materials or adequate instructions, feedback or further information reasonably requested by ThoughtWare;
     • the delays, action, operation, inaction, or failure of any third party service, software, or equipment; or
     • any Force Majeure event; and
   • any Specific Exclusions in the Customer Contract are expressly excluded from the scope of the Project Services.
5. Any out of scope work encountered or requested in the course of Paid Support Services will be charged in addition in accordance with the Services Rate Card.

5.5 Acceptance

1. Upon delivery of a Deliverable, it is the Customer's responsibility to review and test the Deliverable.
2. The Customer must give ThoughtWare notice in writing within 3 Business Days if it considers the Deliverable does not meet the agreed specifications contained in the Customer Contract. ThoughtWare will then review and correct any identified defects to meet the agreed specifications and re-present the Deliverable to the Customer for acceptance.
3. The Deliverable is deemed to be accepted if the Customer confirms that it accepts the Deliverable, or if ThoughtWare does not receive written notice to the contrary within 3 Business Days.
4. The parties acknowledge that delayed acceptance of a Deliverable will impact upon the delivery timeframe of all future Deliverables under the Customer Contract.
5. Any changes the Customer requests to a Deliverable once it is deemed to be accepted will be treated as Out-of-Scope Services and ThoughtWare reserves the right to apply its Services Rates Card to any such services.

6.1 Customer inputs

1. The Customer must:
   • ensure that the Customer Systems on which the Software is used meet any minimum requirements as advised in Clause 4.3 of these Terms;
   • co-operate promptly with ThoughtWare to allow effective provision of the Software and/or Support Services to the Customer, including following ThoughtWare's reasonable requests to provide timely instructions, approvals, and access to Customer Systems, Customer Data, Customer Materials, information and appropriately trained and informed Customer Personnel; and
   • immediately notify ThoughtWare of any change in the Customer Systems, business, procedures, Personnel or any other developments that might materially affect the Software and/or Support Services (including change of designated System Administrators/Personnel).
2. The Customer warrants and undertakes that:
   • the Customer has all necessary licences and legal rights to permit and authorise ThoughtWare to provide the Software and Services;
   • in using the software, hosting, Project Services and Deliverables, the Customer will comply with all applicable laws, regulations and all reasonable directions of ThoughtWare; and
   • providing the Software and Services in accordance with the Customer's directions will not cause ThoughtWare to contravene any applicable laws or infringe any third party rights.
3. The Customer acknowledges that changes to the Customer's inputs to the Software resulting from organisational changes or new business requirements may impact the operation of the Software, therefore any proposed changes to Customer inputs should be discussed with ThoughtWare well in advance of any such changes taking effect.
4. ThoughtWare may treat any additional work required as a result of the operation of clause 6.1.3, or Customer's breach of any clauses 6.1.1 to 6.1.3, or reconfiguration changes and changes to interdependent systems, as being out of the scope of the relevant Customer Contract, and are also expressly excluded from the Support Services provided under these Terms, and additional charges may apply.
5. The Customer is responsible for ensuring that:
   • all changes to core configuration and interdependent systems made after the initial implementation of the Software are adequately tested prior to being made available in the production database; and
   • there is an appropriate roll back plan in place in the event of failure.
6. The Customer acknowledges that work might not begin until any upfront payment(s) have been received, and any deadlines or milestones will be adjusted accordingly.

6.2 Minimum Training Requirements

1. The Customer acknowledges that effective use of the Software requires staff training and agrees to make staff available and pay for remote and/or on site training as required by ThoughtWare, the time, duration and staff numbers and qualifications for such training to be agreed between ThoughtWare and Customer, taking into account in good faith the requirements of ionMy and Customer's business needs.
2. The Customer accepts responsibility for ensuring all End Users and System Administrators are adequately trained.
3. For effective use of the Software, Customer must have at least one appropriately trained System Administrator, where:
   • Customer acknowledges that if a System Administrator will be leaving that role for any reason, part of their duties is to appoint a successor;
   • if a System Administrator leaves that role suddenly or unexpectedly, Customer will appoint a successor as soon as possible;
   • during implementation of the Software (and at any time as such Customer Personnel change), System Administrators must undertake system administration and User Acceptance Testing (UAT) training provided by ThoughtWare; and
   • duration of training will vary depending on scope of implementation; but
   • Customer may choose to assign the role of System Administrator to ThoughtWare, where that service will be provided for an extra fee according to the Services Rate Card.
4. Unless otherwise agreed in a Customer Contract, all training provided by ThoughtWare will be charged in accordance with the Services Rate Card and will be delivered on-site or through online meeting/webinar software.

6.3 Fees, Licence Fee reviews and payment schedules

1. First Annual Licence Fee to be paid:
   • 50% upon signing of the Licence Agreement;
   • 25% upon installation of the software; and
   • 25% upon Go Live.
2. Subsequent annual Licence Fees may be paid in advance annually, 6-monthly, quarterly or monthly as set out in the Licence Agreement.
3. Annually (typically at least one month prior to the anniversary of the Licence Start Date), the Licence Fee will be reviewed by ThoughtWare and adjusted as follows:
   • Variation: if over the most recent financial year the Variation Trigger is exceeded, the Licence Fee will be revised by re-applying the Calculation Basis to the most recent available financial year figure; or
   • CPI: if the Variation Trigger is not exceeded (or the Licence Fee is not revenue-based), the amount of the Licence Fee will be increased by the same percentage as the most recently published CPI Increase since the Start Date or last Review Date, whichever is most recent.
4. The Customer agrees to provide ThoughtWare with the information, instructions, and access necessary for ThoughtWare to conduct the Licence Fee reviews described above in a timely manner.
5. Paid Support Services including integration development, data entry, report writing, custom development and project management and any other consulting work are provided at the costs shown in the currently published Services Rate Card.
6. If on site work is required, travel time may be included in the fee and Customer must also pay travel costs (including fares, accommodation, transport, parking and meals). ThoughtWare air travel will be by economy class via the most direct route and accommodation and other costs will be reasonable.

6.4 Establishment services

1. The Customer acknowledges that if the Software is being licensed to the Customer for the first time under the Customer Contract, the Customer will be required to purchase the following services (together, the Establishment Services) from ThoughtWare prior to using the Software in a live production environment:
   • Discovery services, under which ThoughtWare will consult with the Customer to gather business requirements and develop an implementation plan; and
   • Software implementation and training services;
2. Establishment Services will be charged in accordance with the Services Rate Card unless otherwise agreed under the relevant Customer Contract.

6.5 Acceptable Use

The Customer must ensure that it and its End Users do not use the Software for illegal or illegitimate purposes including, but not limited to:

1. breaching or otherwise circumventing any security or authentication measures;
2. using the Software for anything other than the Customer's internal business purposes;
3. selling, renting, sublicensing, transferring or providing the use of, or access to the Software, to unlicensed persons;
4. publishing the Software for others to copy;
5. developing or helping others develop a product that is competitive with the Software; or
6. violating the law or infringing any person's rights in any way, including storing, publishing or sharing material that is fraudulent, defamatory or misleading.

The Customer is solely responsible for the acts, omissions and defaults of End Users, whether intentional or otherwise.

1. Invoices will be sent via email to Customer's approved accounts email address.
2. Tax invoices are payable by the due date shown on the invoice (generally within 30 days of the date of the invoice).
3. Invoices are issued and paid in advance, except that invoices for expenses and Time & Materials Contracts are calculated and issued monthly in arrears.
4. If the Customer does not pay any amount by the due date (except any amount which is validly disputed under "Billing Disputes" below), ThoughtWare may charge interest on payments at the rate of 10% per annum, compounded daily. The Customer will also pay ThoughtWare's reasonably expenses in recovering payment.
5. All fees are exclusive of GST, unless otherwise stated. ThoughtWare will issue the Customer with a tax invoice for any supply on which GST is imposed and the Customer must pay an amount equal to any GST payable on supply of that service to ThoughtWare.
6. All fees are to be paid by direct funds transfer into ThoughtWare's bank account as shown on the invoice.
7. ThoughtWare may vary its Services Rate Card from time to time by providing 30 days' written notice to the Customer.
8. Billing Disputes:
   • If the Customer believes that an invoice issued by ThoughtWare contains an error and the Customer wishes to dispute the invoice, the Customer must:
     • notify ThoughtWare in writing and provide detailed information about the disputed amount by the due date of the invoice; and
     • pay any undisputed amount by the due date of the invoice.
   • ThoughtWare will not suspend or terminate the provision of the Services while the billing dispute is being investigated by ThoughtWare.

8.1 Suspension

1. ThoughtWare may suspend performance of and access to any or all of the Services at any time if it believes:
   • the Customer is in material breach of this Agreement (including where Fees are overdue) or there is a breach of clause 6.5 of these Terms (Acceptable use); or
   • in ThoughtWare's reasonable opinion, the Customer Systems or Customer Data may be causing damage to any person or property.
2. Suspension under this clause will not affect the Customer's liability to make payments under this Agreement.
3. If ThoughtWare exercises its rights under this clause 8.1, ThoughtWare will immediately notify the Customer of its reasons and both parties will use reasonable endeavours to limit the effect and duration of the suspension.

8.2 Termination for default

Either party may terminate any Customer Contract immediately by notice in writing to the other party if an Event of Default occurs in relation to the other party. An Event of Default occurs in the case of either party, if a party commits a breach of its obligations under a Customer Contract which:

1. if capable of being remedied, is not remedied within 10 Business Days of notice from the other party, specifying the breach and requiring it to be remedied; or
2. is a material breach and is not capable of remedy.

8.3 Termination for convenience (without default)

1. Either party may provide written notice, no less than three (3) months prior to the end of the current Licence Period, that they do not wish to renew a Licence Agreement, in which case the Licence Agreement will terminate upon expiry of the then current Licence Period.

8.4 Consequences of termination

1. On termination of a Licence:
   • the Customer must immediately cease using the Software, Documentation and other ThoughtWare Materials, and comply with any other obligations expressed to apply on termination of this Agreement;
   • early termination fees may apply to Single-Tenant Hosting as per clause 4.2.7 of these Terms;
   • any unpaid invoices remain payable and (subject to clause 8.4.5) no monies paid for the Licence Period are refundable; and
   • in addition to ThoughtWare's other remedies, ThoughtWare may issue an invoice for Paid Support Services performed or other charges incurred but not previously invoiced.
2. Upon termination of a Licence for any reason the parties will negotiate in good faith as to any additional transition out services (such as data extract, read-only access) should they be required.
3. ThoughtWare reserves the right to completely and permanently destroy any and all copies it holds of any Customer Data or Customer Materials provided under any Customer Contract two (2) months after the date of termination of the relevant Customer Contract.
4. Cancellation Fee: If a Licence is terminated (other than for ThoughtWare's default) then:
   • if termination is before the end of the Initial Licence Period, then the Customer will pay ThoughtWare a Cancellation Fee equal to 75% of the annual ionMy Licence Fees remaining for the initial Licence Period; or
   • if terminated for any reason without sufficient notice as defined in clause 8.3.1, then the Customer will pay ThoughtWare a Cancellation Fee equal to 75% of their annual ionMy Licence Fee; but
   • in all other cases there will be no Cancellation Fee.
5. The Customer acknowledges and agrees that the Cancellation Fee under this clause 8.4 represents a genuine pre-estimate of the loss ThoughtWare will suffer as a result of early termination and is not a penalty.
6. If a Licence is terminated at any stage due to ThoughtWare's default, ThoughtWare will refund the Customer any unused portion of Licence Fee already paid in advance, on a pro-rata basis.
7. ThoughtWare reserves the right to offset any refund provided under this clause 8.4 against any other unpaid amounts due to ThoughtWare under the Agreement.
8. Termination of a Customer Contract that is not itself the Licence will not affect the operation of its Licence or other independent Customer Contracts.
9. If a Paid Support Services Customer Contract ends for any reason, then in addition to any other rights ThoughtWare may have:
   • ThoughtWare may issue an invoice for Project Services performed or other charges incurred but not previously invoiced; and
   • ThoughtWare retains a lien over all Deliverables and work in progress until all outstanding invoices have been paid in full.

9.1 Confidentiality

1. A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information or use the Confidential Information other than for the purposes of performing this Agreement.
2. A party shall not be in breach of clause 9.1.1 by disclosing the other party's Confidential Information:
   • in circumstances where it is legally compelled to disclose the other party’s Confidential Information; or
   • to its own personnel or to its legal or financial advisors who are under a duty of confidentiality no less onerous than the obligations under this Agreement.
3. Each party must take all reasonable steps to ensure that its personnel and any other person to whom it discloses the other party's Confidential Information do not make public, disclose or misuse the other party’s Confidential Information.
4. Upon termination or completion of the Licence, ThoughtWare must deliver to Customer any Customer Confidential Information in ThoughtWare's possession which is capable of being delivered. Other than for agreed archiving of historical records, ThoughtWare must delete, erase, or otherwise destroy any Customer Confidential Information contained in computer memory, magnetic, optical, laser, electronic, or other media in its possession or control which is not capable of delivery to Customer.

9.2 Privacy

1. The parties acknowledge that Customer Data and ThoughtWare Materials may include Personal Information and each party must ensure that any dealings with Personal Information it uses, obtains or provides to the other party for the purposes of the Customer Contract comply with all applicable laws, rules and regulations in Australia, including without limitation the Privacy Act.
2. Both parties must take reasonable steps to protect Personal Information provided by the other party from misuse, interference and loss and from unauthorised access, modification or disclosure.
3. The Customer acknowledges that it remains responsible under the Privacy Act for any Personal Information to which it provides ThoughtWare access and must provide any notices and procure any consents necessary for any collection, use, disclosure or storage by ThoughtWare in the course of providing the Services.
4. Thoughtware will comply with any Customer policies in relation to privacy and information security which are provided to Thoughtware.

9.3 Customer Data

1. If ThoughtWare considers that a potential Eligible Data Breach has occurred in respect of any Customer Data, ThoughtWare agrees that it will:
   • promptly take reasonable steps to contain and assess the breach in accordance with its data breach response plan;
   • promptly notify the Customer and provide reasonable assistance requested by the Customer for the purposes of the Customer assessing whether the breach is an Eligible Data Breach; and
   • in relation to any notification, defer (in accordance with section 26WM of the Privacy Act) to the Customer's notification in respect of any Eligible Data Breach if requested by the Customer.
2. Each party will bear its own costs in investigating, assessing and notifying affected individuals and the Office of the Australian Information Commissioner (OAIC) (if required) of potential Eligible Data Breaches involving Customer Data.

10.1 Rights preserved

10.2 Customer Materials

10.3 ThoughtWare Materials

1. ThoughtWare grants to the Customer a non-exclusive, non-transferable licence to use the ThoughtWare Materials to the extent necessary for the Customer to enjoy the benefit of the Services and Software for the Customer's own business purposes.  Unless otherwise specified in the relevant Customer Contract, the licence granted under this clause extends only for the duration of that Contract.
2. The Customer must not amend, alter, copy, distribute, exploit, make a derivative of or otherwise deal with any part of the ThoughtWare Materials or Software in a way inconsistent with ThoughtWare’s rights as owner of the Intellectual Property Rights in the ThoughtWare Materials and Software.

10.4 Third Party Intellectual Property

10.5 Publicity rights

11.1 Authority

Each party represents and warrants to the other party that:

1. it has the power to execute, deliver and perform its obligations under this Agreement; and
2. all necessary corporate and other action has been taken to authorise that execution, delivery and performance.

11.2 ThoughtWare Warranties

ThoughtWare represents and warrants that the services will be performed as described in the Contract and that: 

1. it will use commercially reasonable endeavours to carry out the work by the due date;
2. it will carry out all services with all due skill and diligence and in a good and workmanlike manner;
3. it will use its commercially reasonable endeavours to achieve the agreed outcomes; and
4. ThoughtWare's employees and agents will have the necessary skills, professional qualifications and experience to perform the services in accordance with the Contract.

11.3 Legal Exclusions

Any conditions, rights, warranties or guarantees implied by law into this Agreement are expressly excluded to the extent permitted by law, but nothing in this Agreement excludes any right or guarantee the Customer may have under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) and any equivalent state or territory legislation or other rights in relation to the supply of goods or services that cannot lawfully be excluded (Consumer Guarantees).

11.4 Limitation of Liability

Subject to clause 11.3, ThoughtWare's liability in respect of any breach of or failure to comply with any Consumer Guarantee is limited to:

1. in the case of goods, the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
2. in the case of services, to the supplying of the services again; or the payment of the cost of having the services supplied again.

11.5 Exclusions

Subject to clauses 11.3 and 11.4, the Customer agrees that:

1. Consequential Loss is excluded;
2. ThoughtWare does not warrant that the Services will enable the Customer to meet any specific standard or accreditation, unless expressly set out in a Customer Contract;
3. ThoughtWare will not be liable to the Customer for any defects, interruptions or performance issues to the extent attributable to:
   • any breach by the Customer of this Agreement;
   • misuse of the Software or Deliverables by the Customer or End Users;
   • any modifications or alterations to the Software or Deliverables not approved in writing by ThoughtWare;
   • malfunction of Customer Systems; or
   • any Third Party Intellectual Property; and
4. ThoughtWare’s liability to the Customer for all Loss and Claims arising out of this Agreement will be limited in the aggregate to the total Fees paid by the Customer to ThoughtWare under this Agreement over the previous 12 months at the time the alleged cause of the liability arises.

11.6 Indemnities from Customer Fault

1. any breach of this Agreement by the Customer;
2. any wilful, unlawful or negligent act or omission of the Customer, its officers, employees or contractors; or
3. the Customer Materials being unlawful or infringing any third party rights.

11.7  Indemnities from ThoughtWare Fault

ThoughtWare indemnifies and holds harmless the Customer and its related bodies corporate, and their respective shareholders, directors, officers, employees, agents and other representatives from and against any and all claims (including reasonable legal fees) to which such indemnified parties may become subject by reason of:

1. a third party claim that the services or their use by the Customer in accordance with the Contract infringes the rights (including any Intellectual Property Rights) of any third party;
2. any breach of the Contract by ThoughtWare; or
3. any negligent act or omission or wilful act in connection under this Contract by ThoughtWare.

12.1 Notice

A party claiming that a dispute has arisen must give a notice in writing to the other party setting out the nature of the dispute (Dispute Notice). Within 3 Business Days of receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the dispute must be referred to the senior executives nominated by each of the parties, who must meet and use their reasonable endeavours to resolve the dispute.

12.2 Continuing Obligations

Pending resolution of any dispute, the parties must continue to perform their obligations under this Agreement without prejudice to their respective rights and remedies (except where such obligations are the subject of the dispute).

12.3 Arbitration

If the dispute is not resolved by the mediation within 30 Business Days after receipt of the Dispute Notice, either party may commence court or arbitration proceedings as the case may be. Nothing in this clause 12 shall prevent a party from seeking urgent interlocutory relief.

13.1 Force Majeure

1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
2. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

13.2 Assignment

13.3 Subcontracting

13.4 Variation

13.5 Costs and expenses

13.6 Waiver

13.7 Severance

13.8 Governing law and jurisdiction

1. This Agreement is governed by and is to be construed under the laws in force in Queensland, Australia.
2. Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in Queensland Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

13.9 Further assurances

13.10 Disparaging Comments

13.11 No reliance

13.12 Entire agreement

13.13 Counterparts

13.14 Relationship of parties

13.15 Remedies cumulative

13.16 Clauses that survive termination