Objective Licensed Software User Guide

: June 12, 2024
: Objective

Subscription Software (On-Prem) Terms
Version: 3-May-2023

IMPORTANT NOTE: Please do not install or use Objective’s Licensed Software until Customer has read and agreed to these Subscription Software (On-Prem) Terms (“ Agreement ”). This is an agreement between Customer and Objective (as such terms are defined in clause 16.1). By executing an Order Form or clicking next to “I accept the terms and conditions” (or equivalent words) in an installation process, Customer is agreeing to the terms of this Agreement and the Order Form. If Customer and Objective signed a separate licence agreement for the Licensed Software, the terms of the signed agreement supersede the terms of this Agreement. IF FOR ANY REASON CUSTOMER IS NOT WILLING TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT SIGN THE ORDER FORM OR CLICK ON “I ACCEPT”.
Capitalised terms used in this Agreement have the meanings given to them in clause 16.1 below.
THANK YOU FOR CHOOSING OBJECTIVE
Objective and the Customer agree as follows:

SCOPE OF THIS AGREEMENT

1.1 This Agreement sets out the terms and conditions that govern Customer’s subscription to the Licensed Software identified in the Order Form.
1.2 Any professional services to be performed by Objective in relation to the Licensed Software (e.g. installation and implementation services) will be set out in a statement of work that forms part of an Order Form or is otherwise executed by the Parties (each an “SOW”). Each SOW shall be governed by this Agreement or such other contract that governs the SOW as executed by Customer and Objective.

LICENCE GRANT

2.1 Subject to the terms of this Agreement, and in consideration of the Charges, Objective grants Customer a nonexclusive, non-transferrable and personal licence (without any right to sub-licence) to download, install, use and run the Licensed Software for the
Subscription Period (non-perpetual), strictly for Customer’s own internal business purposes and by not more than the maximum Licence Volume.
2.2 Customer is authorised to make the following copies:
(a) one (1) copy of the Licensed Software, strictly as part of Customer’s backup and archival purposes for use in Customer’s own passive disaster recovery or business continuity processes during the Subscription Period; and
(b) as many copies of the Documentation as are reasonably necessary for the authorised use of the Licensed Software in accordance with the terms of this Agreement.
2.3 The Licensed Software is licensed, not sold, and all rights not expressly granted to Customer in this Agreement and/or Order Form are reserved by Objective.
2.4 Customer agrees that throughout the Subscription Period it will not:
(a) exceed the Licence Volume without first paying Charges for such excess use;
(b) modify, enhance, improve, adapt, alter, translate, publish or create derivative works from the Licensed Software and/or Documentation;
(c) copy the Licensed Software in any form or from any media or download in excess of the express number and type of copies permitted in this Agreement;
(d) merge or otherwise subsume the Licensed Software and/or Documentation within or with other software and/or documents or permit the Licensed Software and/or Documentation to be combined with any other programs to form a combined work;
(e) give, perform, deliver, display, distribute, licence, sub-licence, sell, lease, rent or loan the Licensed Software and/or Documentation (or any part thereof) to any third-party (whether associated with Customer or not), or otherwise delegate or subcontract any or all of Customer’s rights or obligations arising out of this Agreement, or transfer, assign or novate the Licensed Software and/or Documentation or provide access or use of the Licensed Software (or any part thereof) to any thirdparty, or otherwise encumber the Licensed Software 0and/or Documentation in any way;
(f) reverse engineer, reverse compile, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Software (except to the extent permitted by applicable copyright legislation);
(g) open, break, crack, scan, read or otherwise violate any protected file relevant to the installation activity for the Licensed Software. To avoid doubt, access to protected files by the Licensed Software itself as part of its normal operation is not prohibited;
(h) use the Licensed Software for competitive analysis or to build competitive products;
(i) publish the results of any performance or benchmark tests run on the Licensed Software or any component or module of the Licensed Software;
(j) remove or alter or obscure any proprietary labels or notices from the Licensed Software and/or Documentation;
(k) use the Licensed Software and/or Documentation in furtherance of the planning, construction, maintenance, operation or use of any nuclear facility or for the flight, navigation or communication of aircraft or ground support equipment, or for any other purpose outside of the scope of this Agreement without Objective’s prior written consent;
(l) use the Licensed Software and/or Documentation in contravention of any applicable law or regulation; or
(m) encourage, assist or participate in any way with any third-party to do any of the foregoing.
2.5 Customer agrees that throughout the Subscription Period it will:
(a) be responsible for all information and records inputted to the Licensed Software;
(b) observe the Licence Volume and the terms of this Agreement at all times and avoid any and all infringement of Objective’s Intellectual Property rights;
(c) be responsible for all environments in which the Licensed Software is installed, and maintain accurate records about Customer’s use of the Licensed Software;
(d) allocate and monitor Users of the Licensed Software; and
(e) protect passwords for any authorised use of the Licensed Software.
2.6 At the end of the Subscription Period, Customer must cease all use of the Licensed Software and Documentation and must promptly delete all copies of the Licensed Software from Customer’s systems and facilities (including all production and non- roduction instances). Customer must also delete all digitial and hard copies of the Documentation. Customer must certify in writing to Objective, promptly following request, that the foregoing deletion activities have been completed. To the extent Customer is required by law to keep a copy of the Licensed Software or Documentation for a period after the Subscription Period, then Customer must notify Objective in writing of such period and the legal requirement basis, and must still carry out the deletion promptly after the end of that period.

SUBSCRIPTION PERIOD / AUTOMATIC EXTENSIONS UNLESS TERMINATED

3.1 The Subscription Period starts on the Commencement Date and continues for the Term (i.e. the Initial Term plus any Extended Term(s)), subject to earlier termination in accordance with this Agreement.
3.2 The Initial Term will automatically extend for one (1) year periods (i.e. Extended Term(s)) unless either Customer or Objective cancels an automatic extension within the timeframes as set out in clauses 3.3 and 3.4 respectively.
3.3 Customer can prevent an Extended Term from coming into effect as follows:
(a) If Customer has subscribed by completing an online transaction, by cancelling the extension through Customer’s Online Account at any time before the end of the current Subscription Period; or
(b) If Customer has subscribed by signing an Order Form, by giving written notice to Objective of the election to cancel, which must be received by Objective at least ninety (90) days before the end of the then-current Subscription Period (i.e. Initial Term or Extended Term, as the case may be).
3.4 Objective can prevent an Extended Term from coming into effect by giving Customer at least six (6) months’ prior notice of the election to cancel to be delivered to Customer as follows:
(a) If Customer has subscribed by completing an online transaction, by providing the notice through Customer’s Online Account; or
(b) If Customer has subscribed by signing an Order Form, by notifying Customer’s representative in writing of the election to cancel.
3.5 If either Party does not elect to stop an Extended Term within the above specified timeframes, then the Extended Term automatically comes into effect pursuant to clause 3.2 and Customer must pay to Objective the annual-in- advance Charges for the Extended Term in accordance with this Agreement (including the annual uplift as described in clause 6.13) and the Order Form, and Objective must supply the Licensed Software and Support Service for that period.
3.6 Stopping an Extended Term means Customer will continue to be able to use the Licensed Software for the remainder of the then-current Subscription Period, but thereafter all right to use will cease.

LICENCE VOLUME

4.1 The subscription to the Licensed Software is based upon the Licence Volume at the Commencement Date. If at any time during the Subscription Period Customer does not use the Licensed Software up to the Licence Volume set out in the Order Form, that does not oblige Objective to reduce its Charges or provide any credits or refunds.
4.2 Where the Licence Volume is based on a number of ‘Users’, Customer is responsible for ensuring that all persons that use the Licensed Software are covered by a User licence. The Licensed Software is not offered / licensed on a concurrent user basis, unless otherwise stated in the Order Form.
4.3 At any time during the Subscription Period, Customer may request Objective to immediately increase Customer’s Licence Volume by granting additional licences either:
(a) through Customer’s Online Account where such functionality is available; or
(b) through a documented change or variation to an Order Form, as agreed by the Parties.
4.4 Charges for increases to the Licence Volume (as contemplated in clause 4.3) will be at Objective’s then-current pricing for the Licensed Software unless otherwise agreed in the Order Form.
4.5 At any time during the Subscription Period, Customer may request Objective to reduce Customer’s Licence Volume from the start of the next Extended Term period, as follows:
(a) If Customer has subscribed by completing an online transaction, through Customer’s Online Account; or
(b) If Customer has subscribed by signing an Order Form, by seeking a documented change or variation from Objective through Customer’s allocated Objective Account Manager.
4.6 Objective reserves the right to conduct an audit of usage against Licence Volume at least once per annum during the Subscription Period and Customer will co-operate reasonably with such audit.
4.7 Customer acknowledges that excess usage beyond the paid Licence Volume ceiling is automatic acceptance of an obligation to pay Charges for the excess licences for the period starting when the excess use began to the end of the then-current Subscription Period.

SUPPORT SERVICE AND NEW RELEASES

5.1 Objective will provide the Support Service detailed in the Order Form for the duration of the Subscription Period, in accordance with the Support Plan (which is incorporated into this Agreement by reference).
5.2 The Charges for the subscription to the Licensed Software includes the supply of the Support Service and any New Releases for the Subscription Period, unless otherwise provided in the Order Form.
5.3 During the Subscription Period, Objective may (at its discretion) make future New Releases for the Licensed Software available to Customer.
5.4 If Customer installs a New Release in a production environment (as distinct from a test environment), Customer’s licence rights in respect of the prior release promptly end and Customer must comply with clause
2.6 in respect of that prior release (and the licence granted under this Agreement will apply to the New Release instead).

ORDER FORM AND CHARGES

6.1 The Order Form will set out the specific Licensed Software, Subscription Period, Licence Volume, Support Service and Charges for Customer’s subscription to the Licensed Software as at the Commencement Date (as such may be amended by the Parties from time-to-time during the Subscription Period in accordance with this Agreement).
6.2 All Charges for the subscription to the Licensed Software (including the Support Service and New Releases) are payable as set out in the Order Form, and all Charges for the professional services under an SOW are set out in the SOW and/or the Order Form.
6.3 All Charges are shown exclusive of Tax unless otherwise stipulated, and Customer must pay Objective the Taxexclusive amount and \ the amount of Tax imposed at the same time.zx
6.4 Objective will provide a Tax Invoice(s) to Customer for payment of the Charges.
6.5 Customer will pay each Tax Invoice rendered as follows:
(a) If Customer has subscribed by completing an online transaction, at the time of the purchase transaction (i.e. on the Commencement Date); or
(b) If Customer has subscribed by signing an Order Form, within thirty (30) days of the date of issue.
6.6 If for any reason a Tax calculation under this Agreement differs from a calculation determined by the relevant taxation office, Customer must pay the extra difference to Objective (or Objective must pay the under difference to Customer, as the case may be). Objective will provide Customer with an adjustment note addressing the Tax determination within thirty (30) days.
6.7 If Tax changes occur during the Subscription Period, Objective may adjust the Tax-inclusive price accordingly and Customer must pay the adjusted sum at the next invoicing date or earlier at Objective’s discretion.
6.8 If Customer reasonably considers that a Tax Invoice has been incorrectly rendered by Objective, Customer must pay the undisputed portion of the Charges and as soon as practicable and in any event prior to the partial payment, notify Objective of its dispute as to the balance in sufficient detail to enable Objective to understand the basis of the dispute.
6.9 Customer acknowledges and accepts that disputes about Charges must be initiated in a timely manner. Customer may not initiate any dispute over any Charges (or part thereof) if the relevant invoice was issued more than three (3) months earlier.
6.10 If Customer has failed to pay any undisputed Charges within the time specified in clause 6.5, Objective must notify Customer of the lateness and give Customer fourteen (14) days’ notice to make its payment. If Customer has still not paid the undisputed Charges by the end of the late notice period, Objective may apply interest on the undisputed Charges at the rate of 3% per annum above the prevailing base lending rate quoted by the National Australia Bank (or, if lower, the highest rate permitted by law) of the unpaid sum which will accrue daily from the end of the late notice period until payment is received. The interest will be calculated weekly and compounded monthly up to the date of actual payment. Customer will pay interest on late payments on
demand.
6.11 Objective reserves the right, upon thirty (30) days advance written notice, to pro-rate any annual period and corresponding Charges to align with an end date of 30 June during each year of the Term.
6.12 Charges for any increases to the Licence Volume will be as follows:
(a) If Customer has subscribed by completing an online transaction, the pricing available through the Online Account; or
(b) If Customer has subscribed by signing an Order Form, the then-current list pricing offered by Objective for the Licensed Software unless otherwise agreed in the Order Form.
6.13 The Charges for each Extended Term year period will be subject to an uplift of: (a) five per cent (5%); or (b) CPI; whichever is greater, unless Objective has agreed an alternative uplift formula in either of the following:
(a) If Customer has subscribed by competing an online transaction, in the Online Account pricing; or
(b) If Customer has subscribed by signing an Order Form, in the Order Form.
6.14 For Customers who subscribe online:
(a) Customer authorises Objective to store Customer’s payment method(s) in the Online Account and to automatically charge that payment method(s) every year until the Subscription Period ends in accordance with this Agreement;
(b) Customer may edit Customer’s payment information at any time in the Online Account; and
(c) Customer acknowledges that Objective may apply reasonable terms and conditions governing the use of that Online Account, which will be separate from this Agreement.
6.15 Charges are not subject to refund except in accordance with law and expressly in accordance with this Agreement.

7.1 Customer acknowledges that the Licensed Software may contain analytics functionality to enable Objective to collect, maintain, process and use technical, operational, usage, diagnostic and related information about how the Licensed Software functions (“Analytics Data”).
7.2 Customer agrees Objective may use and process Analytics Data strictly for the purpose of improving Objective’s software and services, provided that Objective de-identifies and anonymises all Analytics Data prior to use.

CUSTOMER DATA AND INTELLECTUAL PROPERTY RIGHTS

8.1 Customer owns all Customer Data inputted to and generated by the operation of the Licensed Software. Objective does not acquire any right, title or interest in Customer Data except a limited licence to access Customer Data strictly as necessary for the purpose of supplying the Support Service under this Agreement and the applicable Order Form.
8.2 All Intellectual Property in the Licensed Software (including New Releases) and in all Documentation is owned or licensed by Objective.
8.3 If Customer provides Objective with feedback (including product / functionality suggestions) Objective may use that information and material without restriction and without any obligation to Customer.
8.4 Customer permits Objective to retain Customer Data (Support) in Objective’s Support Portal indefinitely following termination of this Agreement, howsoever that occurs, strictly for Objective’s internal knowledge management purposes and subject at all times to the confidentiality and privacy obligations set out in this Agreement.

PRIVACY, DATA PROCESSING AND CONFIDENTIALITY

9.1 Each Party will comply with all applicable data privacy and data processing legislation.
9.2 As each User Registers to use the Licensed Software, Objective will collect personal identification information about individual Users (“Customer Privacy Material”), and Objective will comply with its Privacy Policy in respect of all such Customer Privacy Material.
9.3 Objective will only act as a data processor in respect of Customer Privacy Material and will not re-use it or disclose it outside the requirements of this Agreement.
9.4 Objective reserves the right to update its Privacy Policy from time-to- time to ensure its compliance with law.
9.5 Each Party agrees that it will use the same degree of care (not being less than reasonable care) to protect the other Party’s Confidential Information as it uses to protect its own Confidential Information, and will not disclose the other Party’s Confidential Information, except:
(a) to employees, agents, contractors or advisers who need to know the information for the purposes of this Agreement and who have agreed to keep such information confidential;
(b) with the other Party’s consent;
(c) if required to do so by law or a stock exchange; or
(d) as strictly required in in connection with dispute resolution or legal proceedings relating to this Agreement.

WARRANTIES AND INTELLECTUAL PROPERTY INDEMNITY

10.1 Subject to clauses 10.2 and 10.4, Objective provides the Licensed Software to Customer on an “as is” basis.
10.2 Objective warrants that:
(a) it has the right to grant the licences contemplated in this Agreement and the Order Form;
(b) the Customer’s use of the Licensed Software and Documentation in accordance with this Agreement and the applicable Order Form will not infringe the Intellectual Property rights of any third-party;
(c) the Support Services and the professional services under an SOW will be supplied with all due care and skill; and
(d) the Licensed Software will, for a fixed period of ninety (90) days from the Commencement Date (“Warranty Period”), substantially conform to the applicable Documentation. If Objective is in breach of this warranty, Customer must let Objective know the specific details of the non-conformance, and if Objective (acting reasonably) agrees the non-conformance is present, it will, at its own expense, either replace the Licensed Software or correct the non- conformance to bring the Licensed Software into compliance with its Documentation.
10.3 To the maximum extent permitted by applicable law, the Parties expressly exclude all terms, conditions, warranties, guarantees, undertakings, inducements and representations that are not expressly included in this Agreement and/or an Order Form, whether implied by legislation, the common law, equity, trade, custom or usage or otherwise, relating to this Agreement or the supply of the Licensed Software.
10.4 Objective does not exclude any statutory or implied guarantee, condition or warranty which cannot legally be excluded (including under the Australian Competition & Consumer Act 2010). If any statutory or implied guarantee, condition or warranty applies and cannot legally be excluded, Objective’s liability to Customer under or in respect of any breach of that guarantee, condition or warranty is, to the extent permitted by applicable law, limited, at Objective’s election, to the replacement or resupply of the Licensed Software, Support Service or professional services (as applicable) or refund to Customer the Charges paid for the Licensed Software, Support Service or professional services (as applicable).
10.5 Subject to clause 10.6, Objective will defend Customer against any claim brought against Customer by a thirdparty alleging that the Licensed Software, when used as authorised under this Agreement and the Order Form, infringes the third-party’s Intellectual Property rights (an “IPR Claim”). Objective will indemnify Customer and hold it harmless against any damages and costs finally awarded by a court of competent jurisdiction, or agreed to settlement by Objective, (including reasonable lawyers’ fees) arising out of an IPR Claim, provided that Objective has received from Customer: (a) prompt written notice of the IPR Claim (but in any event notice in sufficient time for Objective to respond without prejudice); (b) reasonable assistance at Objective’s request and expense in the investigation and defence of the IPR Claim, including providing Objective with a copy of the IPR Claim and all relevant evidence in Customer’s possession, custody or control; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if any) of the IPR Claim. Customer may elect to participate in the defence of any IPR Claim with counsel of its choosing at its own expense.
10.6 Objective will not defend Customer or indemnify Customer if the IPR Claim arises due to Customer using the Licensed Software for a purpose or in a manner for which the Licensed Software was not designed, or modifying the Licensed Software, where the IPR Claim would not have arisen but for such use or modification.
10.7 In the event of an IPR Claim, Objective may, at its sole discretion:
(a) obtain for Customer, at no additional cost to Customer, the right to continue to use the Licensed Software;
(b) replace or modify the Licensed Software in a manner so that the infringement or alleged infringement ceases without a material decrease in functionality; or
(c) if Objective reasonably concludes that neither (a) nor (b) is practicable, elect to terminate this Agreement and the Order Form, and refund to Customer any Charges pre-paid in respect of the balance of the subscription term from the time of receipt of the IPR Claim.
10.8 This clause 10 sets out the sole, exclusive and entire liability of Objective arising out of or in connection with an IPR Claim.
10.9 The Licensed Software may contain OSS. OSS contained in the Licensed Software, and the corresponding end user licence agreements associated with such OSS (“OSS Licences”), are set forth in the applicable Licensed Software Documentation or in the Help or Notice text within the Licensed Software. Customer’s use of OSS is governed exclusively by the applicable OSS Licences. Except for the OSS contained in the Licensed Software, the OSS Licences will not apply, in whole or in any part, to the Licensed Software. While an OSS Licence may permit Customer to receive OSS source code, in no event will Customer have any right to, access to or obtain the source code for the Licensed Software. OSS is provided by Objective “as is” and any warranties provided by Objective in this Agreement are expressly disclaimed in connection with OSS. Notwithstanding anything to the contrary elsewhere in this Agreement, in no event will Objective be liable for any direct, punitive, special, consequential, incidental or indirect damages, or loss of profits or revenue related to OSS, even if Objective has been advised of the possibility of such loss or damage.

LIMITATION OF LIABILITY

11.1 Subject to clauses 11.2 and 11.3, Objective’s liability to Customer for any and all claims arising out of or in connection with this Agreement and/or an Order Form (whether arising in contract, tort (including negligence and breach of warranty), statute, equity or otherwise) shall be limited in aggregate to a sum equal to the Charges paid during the period of one (1) year preceding the initial event giving rise to the liability (“Liability Cap”). If the event giving rise to the liability occurs within the first year of the Initial Term, the Liability Cap will be a sum equal to the Charges payable for the first year of the Initial Term as shown on the applicable Order Form.
11.2 In no event will Objective be liable (whether arising in contract, tort (including negligence and breach of warranty), statute, equity or otherwise) to Customer for any: (a) loss of or damage to revenue, profits, sales, business, data, goodwill, opportunity or anticipated savings; (b) consequential, indirect, exemplary, punitive, special, or incidental losses or damages; or (c) damage or injury to, or loss of, reputation; even if Objective has been advised of the possibility of such losses or damages.
11.3 The limitations and exclusions in clauses 11.1, 11.2 and 11.4 do not apply to:
(a) Objective’s liability to Customer for bodily injury (including sickness) or death caused to any person;
(b) Objective’s liability to Customer under the Intellectual Property indemnity in clause 10.5; or
(c) Any liability that cannot be limited or excluded under applicable law.
11.4 The Parties agree to shorten the limitation period for claims, actions, suits or demands (“claim(s)”) made by a Party against the other relating to this Agreement and/or an Order Form (whether arising in contract, tort (including negligence and breach of warranty), statute, equity or otherwise) to one (1) year from the date the claim arose, being the date the Party knew, or should have known after reasonable investigation, of the facts giving rise to the claim.
11.5 The Parties agree that the limitation of liability arrangements in this clause 11 are reasonable, and Customer acknowledges that the amount of the Charges is partly based on these limitation of liability arrangements.

SUSPENSION RIGHT

12.1 Objective may suspend Customer’s use of the Licensed Software or filter or block the Online Account and/or User access or Registration, without derogating from its right to terminate this Agreement and without liability for repudiation if:
(a) Objective is instructed to suspend the solution by a government, administrative, regulatory and/or law enforcement agency to do so;
(b) the presence of a computer virus threatens the integrity of Customer’s Online Account or any process related to operation of the Licensed Software;
(c) Customer and/or any User is reasonably believed to have undertaken any of the prohibited actions in this Agreement; and/or
(d) Objective is facing a Force Majeure circumstance.
12.2 Objective may exercise its right to terminate in the event the suspension contemplated above continues for thirty (30) calendar days.

TERMINATION

13.1 Either Party may terminate this Agreement or an Order Form for cause before the end of the Term if:
(a) A Party commits a material breach of the terms of this Agreement or the applicable Order Form and fails to cure the breach within thirty (30) days of receipt of the non-breaching Party’s written notice detailing the nature of the breach; or
(b) A Party commits an act of insolvency, comes under any form of insolvency administration, or assigns or purports to novate its rights otherwise than in accordance with this Agreement.
13.2 The Parties agree that a material breach within clause 13.1 includes a failure to pay any undisputed Charges within the late notice period in clause 6.10.

DISPUTE RESOLUTION

14.1 Subject to clause 17, this clause 14 sets out the resolution process agreed by the Parties if a dispute arises out of or relating to this Agreement and/or an Order Form, including concerning the breach, termination, validity or subject matter thereof, the performance or non-performance of this Agreement or as to any related claim in restitution or at law, in equity or pursuant to any statute. Subject to clause 14.5, neither Party shall commence any court proceedings without complying with the remainder of this clause 14.
14.2 The Parties to this Agreement and the dispute expressly agree to first endeavour to settle the dispute by negotiation in good faith by senior authorised representatives over a period of ten (10) Business Days, or longer period if agreed in writing. If no resolution is reached by the end of that timeframe, then the dispute must, within ten (10) Business Days, be referred to a mediator in Sydney, Australia agreed by the Parties for mediation administered by the Australia Commercial Disputes Centre (“ACDC”). If the Parties have failed to agree on a mediator within five (5) Business Days, then the mediator will be the mediator selected by the Director of ACDC or his or her nominee. Either Party may refer the dispute for mediation and request selection of a mediator as contemplated in this clause 14.2, and the mediation shall be conducted in accordance with the then-current terms of the ACDC Guidelines for Commercial Mediation.
14.3 The Parties must pay the mediator’s fees in equal shares. Each Party must pay its own costs of the mediation.
14.4 In the event that the dispute has not been settled within twenty-eight (28) days after appointment of the mediator, or such other period as agreed to in writing between the Parties, each Party shall be at liberty to commence proceedings.
14.5 Nothing in this clause 14 shall prevent a Party from instituting legal proceedings in order to obtain urgent injunctive relief from an appropriate court.

GENERAL

15.1 Precedence. If there is any conflict between the components to the contract between the parties, they will be interpreted in the following order of priority: (1) the Order Form; (2) this Agreement; (3) the Support Plan.
15.2 Variations, and purchase order terms. The Parties can only modify or add terms to this Agreement if such variation is specified in an Order Form signed by the Parties. To avoid doubt, if Customer issues a purchase order or any similar document which contains pre-printed or other purported terms and conditions, those preprinted (or other) terms and conditions shall not have any legal or equitable effect.
15.3 Entire Agreement. The documents referenced in clause 15.1 contain the entire agreement between the parties in relation to the supply of the Licensed Software by Objective and supersedes all prior agreements and undertakings (oral or written) and Customer agrees it has not relied upon earlier representations and has only relied upon the materials set out therein.
15.4 Assignment, Novation, Transfer and Sub-contracting. This Agreement and the Order Form, and the obligations formed thereunder, are personal to Objective and Customer. The Parties agree that neither Party may, directly or indirectly, assign, transfer novate or sub-contract any or all of its rights and/or obligations whether it is affected by sale of assets, merger, insolvency, machinery of government change or otherwise, without the other Party’s prior written consent (which shall not be unreasonably withheld).
15.5 Non-solicitation. Throughout the Term and for a further twelve (12) months after expiry or termination, neither Party will attempt to solicit, influence, induce or encourage (or engage others to do so) any of the other Party’s personnel with whom the first Party has come into contact by virtue of this Agreement to leave their engagement with the other Party. Publicly published recruitment advertisements for open competitive hiring opportunities are excluded from the foregoing restraint.
15.6 Publicity. Subject to the Customer’s prior written consent which shall not be unreasonably withheld, Objective may use Customer’s name and logo in any public news release or statement, case study and on Objective’s website to publicise the fact that Customer is a client of Objective. Objective may use Customer’s name in Objective’s annual report and ASX notifications without the Customer’s prior consent.
15.7 Waiver. Any waiver under this Agreement must be in writing. Waiver of any part of this Agreement does not constitute a waiver of any other part of this Agreement.
15.8 Governing Law and Jurisdiction. Subject to clause 17, this Agreement and the Order Form (including any non- contractual obligations arising out of or in connection with the same) is governed by and must be construed in accordance with the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and the Commonwealth of Australia for any proceeding in connection with this Agreement and/or an Order Form, without regard to conflicts of law rules and waives any right it might have to claim that those courts are an inconvenient forum.
15.9 Export Laws. Customer will comply with all applicable export and import control laws, restrictions, national security controls and regulations of any country in its use of the Licensed Software and, in particular, the Customer will not export or re-export the Licensed Software or any Objective Confidential Information if prohibited by applicable export laws.
15.10 Notices . All notices related to this Agreement must be in writing and will be effective upon: (1) personal delivery; (2) the third Business Day after mailing; or (3) except for notices of breach, termination or an indemnifiable claim (each a “Legal Notice”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Invoicing-related notices to Customer will be addressed to the relevant invoicing contact designated by Customer and all other notices will be addressed to the designated representative of the Party as set out in the Order Form (or such replacements advised by a Party via a notice). Any Legal Notices must be sent to the Party’s General Counsel.
15.11 Relationship . Each Party will act as an independent contractor, and employees of each Party will not be considered employees of the other Party. Neither Party may make any commitments binding on the other Party, nor may either Party make any representation that they are acting for, or on behalf of, the other Party.
15.12 Third -Party Beneficiaries. There are no third-party beneficiaries under this Agreement or an Order Form. Customer’s Users are not third-party beneficiaries to Customer’s rights under this Agreement. everability
15.13 S. : If a provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. ime
15.14 T. Time is not of the essence of this Agreement, an SOW or an Order Form except in relation to payments of Charges, giving notice to cancel an automatic Extended Term, giving notice of an IPR Claim, and the shortened liability period in clause 11.4.
15.15 Survival. Clauses relating to Confidential Information, privacy, Intellectual Property, prohibited activities of Customer, limitation of liability, shortened liability period, payments and dispute resolution, together with any other terms which by their nature are intended to survive termination, will survive termination of this Agreement.
15.16 Electronic/Digital Signatures. Electronic and digital signatures that comply with applicable law are deemed to be original signatures.
15.17 Exclusions. Neither the United Nations Convention on Contracts for the Sale of Goods nor the United States Uniform Computer Information Transactions Act apply to this Agreement, regardless of where Customer is located.
15.18 Force Majeure: Except for Customer’s payment obligations, neither Party will be liable for, and each is excused from, any failure to perform hereunder or any delay in such performance, to the extent that such failure or delay is due to Force Majeure. The occurrence of a Force Majeure event will not operate to terminate this Agreement or an Order Form, but if the non-performance of either Party continues for more than thirty (30) days as a result, the Party not affected thereby may, at its option, terminate this Agreement and the affected Order Form upon the giving of thirty (30) days’ notice in writing to the other Party.
15.19 Anti-Corruption and Anti-Bribery. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Objective employee or agent in connection with this Agreement or an Order Form.
15.20 Updating the Terms of t his Agreement. Objective reserves the right to update the terms of this Agreement from time-to-time, provided that any changes shall only be effective from the commencement of the next Extended Term (if such is invoked in accordance with this Agreement). Objective will give the Customer at least forty-five (45) days’ written notice of the change prior to the commencement of the next Extended Term and will post the new terms at www.objective.com/legal.

DEFINITIONS & INTERPRETATION

16.1 Capitalised terms in this Agreement will have the following meanings:
Business Day means any day that is not a Saturday, Sunday or a formal public holiday in Australia, the United Kingdom, New Zealand or Florida, USA at the location of Objective’s office nearest to Customer’s primary location.
Charges means the fees to be paid by Customer to Objective for the subscription to the Licensed Software and Support Service as set out in the Order Form, and the fees for the professional services as set out in the SOW or the Order Form; as such may increase pursuant to the terms of clause 6.
“Commencement Date” means the start date of the Subscription Period, which is either:
(a) if Customer subscribes online, the date the payment is received by Objective; or
(b) if Customer subscribes by signing an Order Form, the start date shown in that document or, if none is shown, then the last date on which a Party signs.
Confidential Information means all information concerning a Party’s business or purpose, including information marked or otherwise designated as confidential, that the discloser treats as confidential or which the recipient knows or ought reasonably to know is confidential, and includes any trade secret, pricing list or fee formula or any information relating to the financial position of a Party. Objective’s Confidential Information includes the Licensed Software, Documentation and the Charges. Customer’s Confidential Information includes Customer Data. ‘Confidential Information’ does not include any information which is in the public domain other than as a consequence of the breach of an obligation of confidence under this Agreement or owed to any third party.
CPI means:
(a) if Customer is located in Australia or Customer’s Order Form shows the Currency for Charges is Australian Dollars, then “CPI” means the latest published annual percentage increase in the Consumer Prices Index (All Groups, weighted average of eight capital cities) as published by the Australian Bureau of Statistics (at: https://www.abs.gov.au/statistics/economy/price- indexes-and-inflation); or
(b) if Customer is located in New Zealand or Customer’s Order Form shows the Currency for Charges is New Zealand Dollars, then “CPI” means the latest published annual percentage increase in the Consumer Prices Index as published by Stats NZ (at: https://www.stats.govt.nz/indicators/consumers-price-index- cpi/); or
(c) if Customer is located in the United Kingdom or Europe or Customer’s Order Form shows the Currency for Charges is British Pounds, then “CPI” means the latest published annual percentage increase in the Consumer Prices Index (All Items) as published by the Office for National Statistics (at: https://www.ons.gov.uk/economy/inflationandpriceindices/timeseries/d7g7/mm23); or
(d) if the Customer is located in the USA or Customer’s Order Form shows the Currency for Charges is United States Dollars, then “CPI” means the latest published annual percentage increase in the Consumer Prices Index as published by the U.S. Bureau of Labor Statistics (at: https://www.bls.gov/cpi/), as such publishing bodies and/or websites may be changed by the applicable government from time to time.
Currency means Australian dollars unless a different currency is provided in the Order Form.
Customer means the Party identified as Customer under this Agreement as set out in the Order Form or in the online registration process for the Licensed Software.
Customer Data means any material or records inputted by Customer into the Licensed Software and any electronic documents or other digital assets generated by Customer in the course of using the Licensed Software.
Customer Data (Support) means Customer’s incident notices and any follow-up and other material submitted to Objective’s Support Portal.
Documentation means Objective’s publicly published material for Users of the Licensed Software, including release notes.
Extended Term means an extension to the Initial Term pursuant to clauses 3.2 to 3.6 (inclusive).
Force Majeure means a situation, circumstance or event beyond the reasonable control of Objective that directly or indirectly prevents it from complying with any of its obligations under this Agreement including: acts of God (such as, without limitation, fire, weather event, lightning strike, flood, tidal wave, earthquake, storm, cyclone or natural disaster); war hostilities (whether declared or not and including an act of foreign enemies, requisition or embargo); civil commotion (including rebellion, revolution or insurrection); contamination by radioactive, toxic, chemical or biological agents; explosion; acts or threats of terrorism, malicious damage or sabotage; pandemics and epidemics; action or inaction by a court or government agency or authority, including denial, refusal or failure to grant any permit or authorisation, licence, approval or acknowledgement despite timely best endeavours exercised by Objective to obtain the grant; strikes or any form of civil or labour disturbance which does not solely affect the workforce of Objective; accident; damage caused by an airplane or other flying vehicle; unavailability of materials, utilities or infrastructure, including Internet and phone access; and unforeseeable breakdown of any facilities, plant or equipment.
Initial Term means the initial subscription term for the Licensed Software as set out in the Order Form.
Intellectual Property means any industrial or intellectual proprietary rights under statute or at common law or equity which now exist or may exist in the future in any country, including copyright, design, trademarks, patents, semi- conductor or circuit layout rights, trade secrets, business names, domain names, social media, blog and other internet titles, Confidential Information, and any application for any of the rights referred to herein.
Licence Volume means:
(a) for named user-based subscriptions, the number of allocated named users and/or servers (as applicable) for the Licensed Software set out in the Order Form;
(b) for enterprise/site-wide subscriptions, the upper limit for the Licensed Software set out in the Order Form; and
(c) such other licence metric(s) that limits or restricts Customer’s use of the Licensed Software as set out in the Order Form (if any).
Licensed Software means, collectively, the Objective on-premise software solution(s) identified in the Order Form including all New Releases provided during the Subscription Period, plug-ins, adaptors, components, modules, programs, third-party software, interfaces and Objective-supplied data which forms part of the same, in object code form only.
New Releases means updates, upgrades, modifications, new releases (all of which may contain enhancements and/or new features) and corrective programming to the Licensed Software;
Objective means the Objective entity identified in the Order Form, but if no such entity is shown then Objective Corporation Limited (ABN 16 050 539 350) of Level 30, 177 Pacific Highway, North Sydney, 2060, New South Wales, Australia.
Online Account means the account for Customer made available by Objective at Objective’s website or other linked web location for Customer to record relevant details about Customer’s subscription.
Order Form means:
(a) if Customer purchases a subscription to the Licensed Software by completing an online transaction, the Tax Invoice generated by Objective’s online purchase process and any updates to the details of it made through the online account from time-to-time during the Term;
(b) if Customer purchases a subscription to the Licensed Software by Customer and Objective signing an Order Form, that Order Form and any updates to it made by written consent of the Parties from timeto-time during the Term; or
(c) if Customer purchases a subscription to the Licensed Software by Customer and Objective signing a contract document or documents to which this Agreement is appended or incorporated, that contract document(s).
Party means a party to this Agreement being Customer or Objective, as the context requires; and Parties means both of them.
Privacy Policy means Objective’s then-current privacy policy (which is located at: www.objective.com/privacy), as such may be amended by Objective from time-to-time.
Register and Registration means the act of signing-up to acquire a licence to use the Licensed Software (i.e. logging in, creating a password which meets Objective’s security criteria and activating new registration from an email link). A person registers by designating a specific user ID and password in order to commence use of the Licensed Software as a User.
SOW has the meaning given to it in clause 1.2.
Subscription Period means the period of Customer’s licence / subscription to the Licensed Software, being the period from the Commencement Date to the last day of the Term.
Support Plan means Objective’s ‘Customer Support Plan’, which details the Support Service for the Licensed Software that is in effect as at the Commencement Date, which is available at www.objective.com/supportplan. Support Portal means Objective’s common online application and environment, accessible via the Internet, into which Objective and Customer may submit incident notices, and otherwise participate in incident management.
Support Service means the activities to support the Licensed Software as set out in the Support Plan.
Tax means any GST, VAT, sales, use, withholding, property, excise, service or other tax.
Tax Invoice has the meaning given under the Australian A New Tax System (Goods and Services Tax) Act (1999) or equivalent legislation in the jurisdiction in which Customer is primarily located (if not Australia).
Term means the Initial Term plus, if applicable, any Extended Term(s).
User means an individual person Registered to use the Licensed Software, whether as a Customer in their own right or an allocated named user of a paying Customer entity.
16.2 In this Agreement, the following rules of interpretation apply, unless the context otherwise requires:
(a) The singular includes the plural and vice versa;
(b) Headings are used for convenience only and do not affect the interpretation of this Agreement;
(c) A reference to a clause is a reference to a clause of this Agreement;
(d) The word “person” means a natural person or any other legal entity whether incorporated or not;
(e) The words ‘includes’ and ‘including’ are not used as, nor are intended to be, interpreted as words of limitation;
(f) “day” means calendar day;
(g) “month” means a calendar month; and
(h) “year” means a twelve (12) month period.

GOVERNING LAW FOR CUSTOMERS LOCATED OUTSIDE AUSTRALIA

17.1 The Parties agree that:
(a) If Customer is located in New Zealand or Customer’s Order Form shows the Currency for Charges is New Zealand dollars, then:
(i) the governing law of this Agreement under clause 15.8 will be New Zealand and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts exercising jurisdiction in New Zealand; and
(ii) the dispute resolution location under clause 14 will be Wellington, New Zealand and the dispute resolution body will be Resolution Institute (and their guidelines for commercial mediation will apply).
(b) If the Customer is located in the United Kingdom or Europe or Customer’s Order Form shows the Currency for Charges is British Pounds, then:
(i) the governing law of this Agreement under clause 15.8 will be England and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts exercising jurisdiction in England; and
(ii) the dispute resolution location under clause 14 will be London, England and the dispute resolution body will be the Centre for Effective Dispute Resolution (CEDR) (and their guidelines for commercial mediation will apply).
(c) If the Customer is located in the USA or Customer’s Order Form shows the Currency for Charges is United States Dollars, then:
(i) the governing law of this Agreement under clause 15.8 will be the State of New York, USA and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the state and federal courts exercising jurisdiction in the State of New York, USA (and each Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, an SOW, the Order Form and/or the Licensed Software); and
(ii) the dispute resolution location under clause 14 will be New York city and the dispute resolution body will be mutually agreed by the parties (and their guidelines for commercial mediation will apply).

OBJECTIVE.COM

References

Read User Manual Online (PDF format)

Read User Manual Online (PDF format) >>

Download This Manual (PDF format)

Download this manual >>