Terms & Conditions

Australia

1                 Introduction

1.1          This website is owned and operated by Pass Technology Group Australia Pty Ltd ABN 87 625 505 268 (‘Pass Technology’, ‘we’ or ‘us’) of Hurwitz Geller, Unit 1301, 22 Market Street, Sydney, NSW, 2000. (Website)

1.2            These Terms apply in relation to the supply by us of the relevant Pass Technology System (comprising all computer software and data supplied with it) (the “Software”), associated media, printed materials and documentation (“Documentation”) and any related integration, development, support, and/or maintenance services (“Other Services”).

1.3             If we agree to provide you with Software delivered on a SaaS model that delivery may be subject to additional SaaS terms and conditions.

1.4             In these Terms we refer to the Software, Documentation and Services (or any part thereof) as the “PASS Solution”.

1.5             By using the Website or otherwise registering for, agreeing to licence and/or using, the PASS Solution, you agree that you:

1.5.1             have read and understood these terms and conditions (“Terms”); and

1.5.2             are bound by, and will abide by, these Terms.

1.6             If you do not wish to be bound by these Terms, please do not use the Website, or otherwise register for, agree to licence, licence and/ or use the PASS Solution.

2                 Changes to Terms of Access

We reserve the right to review and change any of the Terms by updating this page at our sole discretion. You should regularly check this page to ensure that you are familiar with the Terms.  Any changes to the Terms take immediate effect from the date of publication. Before you continue, we recommend you keep a copy of the Terms for your records.

                Performance of Services

3.1             We will, from when you pay us the Fees,:

3.1.1                   provide the Services (if relevant); and

3.1.2                   permit you to access and use the PASS Solution (or part thereof) for the purposes of receiving the benefit of the Services in accordance with these Terms.

4                 Terms of licence

4.1             Subject to paying the Fees, adhering to these Terms and such other terms and conditions we agree, we grant you a non-exclusive, non-transferable right to access and use the PASS Solution for your own internal business needs in Australia. Unless otherwise agreed by you and us, this licence is limited to you alone using the PASS Solution.

4.2             If we provide you with a Quote, the Quote will not be binding on us until you have formally accepted it (including within any time period specified in the Quote) by signing and returning the Quote to us.

4.3             Your usage of any part of the PASS Solution constitutes acceptance of the Quote (as appropriate) and these Terms. If you breach these Terms we may, in our absolute discretion, suspend your rights to use the PASS Solution without notice to you.

4.4             If authorised by us, you may download, install (as appropriate) and use the Software for your internal business purposes only. Unless otherwise stated in the Quote you may only use the PASS Solution in connection with a single database with a single set of data.

4.5             We licence and authorise you to use the Documentation only to support the proper, lawful and permitted use of the Software.  You may not use the Documentation for any other purpose, nor can you provide it to any third party.

4.6             You undertake that, except to the extent permitted by any applicable law which is incapable of exclusion by contract, you shall not, nor attempt or induce any third party to:

4.6.1             copy (except where to the extent copying is reasonably incidental to normal and proper use, back-up or operational security of the Software), modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the PASS Solution in any form or media or by any means; or

4.6.2             attempt to copy, reverse-compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the PASS Solution or attempt to gain unauthorised access to any part of the PASS Solution or any connected system (and you agree to use all reasonable endeavours to prevent any unauthorised access to, or use of, PASS Solution);

4.6.3             access all or any part of the PASS Solution in order to build a product or service which emulates, is the same or similar to or competes with any part of the PASS Solution;

4.6.4             use the PASS Solution in relation to or to facilitate any illegal activity;

4.6.5             use the PASS Solution to provide a bureau or other service to a third party;

4.6.6             commercially exploit, license, sell, rent, lease, transfer, assign, distribute, or otherwise make any part of the PASS Solution available to any third party other than in accordance with these Terms;

4.6.7             disclose any information which is confidential to us or to seek (whether directly or indirectly) to circumvent our interests or to deploy or use (or assist another to deploy or use) information or processes learned by you as a result of your dealings with us or the PASS Solution otherwise than for your legitimate business purposes that are not in competition with or deleterious  to us;

4.6.8             to make alterations to, or modifications of, the whole or any part of the PASS Solution nor permit the PASS Solution or any part of it to be combined with, or become incorporated in, any other programs or material, other than for  the purpose of creating and maintaining necessary interfaces designed and maintained by us or obscure any copyright or similar notice published by us; and

4.6.9             to permit use of the PASS Solution otherwise than in accordance with these Terms.

4.7             You agree to include our copyright notice of on copies you make of the PASS Solution. All third-party software products supplied to you pursuant to the Quote are licensed to you under the terms (including but not limited to the restrictions on use, warranty, and support) of the original licensor’s agreement which is supplied with such third  party software and you shall comply with such terms and conditions at all times.

5                 Access to the PASS Solution

5.1             You must comply with all operating and security requirements and procedures specified by us from time to time relating to:

5.1.1             access to, and storage of, the PASS Solution;

5.1.2             the use of the PASS Solution and/or Services, (including in respect of passwords and other security information);

5.1.3             other than as expressly permitted under these Terms, not obtain (or attempt to obtain) any access to, or interfere with:

(a)  any software programs or data of ours or any other associated company or client of ours; or

(b)  any part of our systems, hardware, software or networks.

5.2             You must not introduce, or cause to be introduced, any Harmful Code into the PASS Solution, our Website or any other of our system.

5.3             If you become aware of, or suspect, that a breach of any of the obligations set out in clause 5.1 has occurred, you must promptly notify us, in which case we may take such action as we consider appropriate (which may include changing your passwords and/or  other security information.

6                 Agency Information

6.1             You acknowledge that Agency Information is provided to Pass Technology by Government Agencies and other third parties (including but not limited to ACIC and DIBP in Australia), and Pass Technology uses this and other information to provide Agency Checks to/for you (including without limitation Police Checks, VEVO Checks and International Checks). Pass Technology does not have direct access to or control of any Agency Information, and Pass Technology relies on the information provided to it from the relevant Government Agency or authorised third parties (as the case may be) to perform the Services and for and in respect of the PASS Solution.

6.2             You acknowledge that:

6.2.1             we do not have direct access to Agency Information (including without limitation Police History Information or Visa Entitlement Information);

6.2.2             we are not responsible for Agency Information (including without limitation Police History Information or Visa Entitlement Information) provided to you on any Agency Check;

6.2.3             we cannot change, modify or adapt any Agency Information on any Agency Check (including without limitation any Police Check, VEVO Check or International Check), except for minor non-substance alterations to the format and presentation;

6.2.4             accuracy and quality of Agency Information is dependent on the relevant Government Agency or authorised third party (as the case may be), and Pass Technology is not responsible for any inaccurate information provided to you; and

6.2.5             we cannot release any Nationally Coordinated Criminal History Check information without first receiving:

♦        the Applicant’s Application and Applicant’s Informed Consent Form, which has been signed by them, and 100 points of identification; and

♦        confirmation that the Applicant agrees to their identification document information being checked with the issuer or official record holder.

7                 Your Obligations

Information you provide to us

7.1             You are solely responsible for lodging all requests in the PASS Solution under your unique username and password;

7.2             You should review all information provided in an application before submitting it, to ensure the information provided is accurate and correct. Any incorrect information supplied by you will result in an invalid or inaccurate check.

7.3             Notwithstanding paragraph 7.1, we may, in our absolute discretion, monitor the requests being lodged by you in the PASS Solution, or through your use of the Services.

7.4             You shall bear all costs arising out of any complaints made in connection with the any requests you lodge (including complaints made by any Governmental Agency).

Compliance with Laws & Directions

7.5             You shall:

7.5.1                   comply with all applicable Laws;

7.5.2                   not send the results of any Police Check to any third party in Australia or outside Australia without the approval from the subject of the Police Check.

7.5.3                   comply with our reasonable directions, policies and procedures relating to the use of the PASS Solution as communicated to you from time to time, including, but not limited to:

(a)           any rules or guidelines posted on the Website or as we notify to you from time to time;

(b)           not act in any way that may have a detrimental effect on the goodwill or good standing of Pass Technology;

7.5.4                   you will not act in a way that may expose us to the risk of any legal or administrative action including prosecution under any Laws; or

7.5.5                   you will not act in a way that will interfere with or disrupt our business and the provision of services to third parties.

7.6             Without limitation to any other consent(s) or approval(s) you provide in relation to the Services, you consent to Pass Technology collecting, storing, using and disclosing Personal Information you provide to us:

7.6.1             to conduct any Agency Check that is the subject of your request for Services;

7.6.2             as required by us to provide the Services and perform its obligations under these terms and conditions; and

7.6.3             to comply with Pass Technology’s obligations under any agreement Pass Technology has with the ACIC with respect to the provision of Police Checks.

Accuracy of Information

7.7             You are solely responsible and liable for ensuring that all information provided to us by you (including any Personal Information) is accurate, complete and up to date, is not misleading, does not infringe any other person’s rights and is not in provided in breach of any applicable Law. We are not responsible for any consequences if we have relied on information provided by you, and such information is inaccurate or incomplete.

8                 Verification functionality

8.1             We may embed, incorporate or use verification functionality or features with respect to Agency Checks, which may include providing access to an online verification of the Agency Information contained in the relevant Agency Check, or such other security or integrity measures as determined by us.

8.2             You consent to us making available, or permitting another party to access the relevant Agency Information of the relevant individual (being the subject of the Agency Check), and use such verification functionality or features with respect to the Agency Check. You agree that providing such third parties with access to the relevant Agency Information in accordance with such verification functionality or features is appropriate and reasonable, and required to maintain security and integrity of the relevant Agency Check.

9                 Disputing Search Results

9.1             If you or an Applicant disagrees with, and wishes to dispute, any Agency Check, please complete and send this notice to us at enquiries@passtechnology.com The process for dealing with disputes relating to search results can be found on our Website.

10               Ownership of & Licence to Intellectual Property Rights

Ownership of Intellectual Property Rights

10.1           Unless we agree in writing to the contrary, we (or a third party with whom we have an agreement) are the sole owner of and retain all Intellectual Property Rights with respect to the Services, including specifically all Intellectual Property Rights in and to:

10.1.1                 the Website, Pass Technology Systems and PASS Solution;  and

10.1.2                 all documentation, know-how, methodologies, equipment, systems, processes, Agency Check information and other materials supplied or made available to you under or in connection with these Terms,

and nothing in these Terms transfers or assigns to you any of those rights.

Licence to use our IP

10.2           Subject to the payment of the Fees, we agree to grant to you a non-exclusive, royalty-free licence for the term of our engagement to use the PASS Software pursuant to these Terms fo the purpose of receiving the Services.

10.3           We grant to you a royalty-free, perpetual and non-exclusive licence to use any Agency Information in your possession, custody or control as at the date our engagement comes to an end pursuant to these Terms.  This licence survives the termination or expiry of this Agreement.

10.4           Upon termination or expiry of our arrangement, you must delete, erase, or otherwise permanently destroy the Documentation, any copies of the Software, all documentation and other materials containing our Confidential Information that came into your possession o in the course of us providing the Services and such other things as specified by us.

10.5           The licences granted to you includes the right to sub-license the relevant licence rights to your Personnel solely for the purpose of you being able to receive and use the Services.  You shall remain liable for your Personnel under this licence.

Licence to use your information

10.6           You grant us a non-exclusive, royalty-free, irrevocable licence to use all non-Personal Information data that came into existence during the provision of the Services and your use of the PASS Solution. We shall use this data on anonymous and aggregated basis

10.7           The integrity of the PASS Solution may be protected by technical protection measures (‘TPM’) so that the intellectual property rights, including copyright, in the PASS Solution is not misappropriated. Whether TPM is in place or otherwise, you must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.

11              Fees &, Payment

11.1           You shall pay us in accordance with the payment terms stated in the Quote, or on such other terms as we agree.

11.2           Unless otherwise stated in the Quote or on the Website all prices are stated exclusive of Goods & Services Tax (‘GST’) which shall be payable in addition to the prices stated.

11.3           Unless otherwise stated in the Quote, we may invoice you monthly in advance (in relation to ascertainable fees) and monthly in arrears in respect of all other fees. Invoices are payable within 14 days of the date on which they are raised.  Some fees may be payable on a per use basis and they will be charged at the time you purchase, download or receive that information.

11.4           If you require Other Services, we shall agree Fees and deliverables associated with delivery of those Other Services.

11.5           We may change the amounts to be charged to you at any time (but you may be entitled to terminate as provided in clause 23). We shall give you at least one month’s notice if we intend to change any of the amounts payable by you while you continue to use the Services.

11.6           If you fail to make any payment due to us by the due date for payment, then we may charge you interest on the overdue amount at the rate of 5% per annum above Commonwealth Bank of Australia’s Corporate Overdraft Reference Rate from time to time or the maximum permitted by law. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You shall pay the interest immediately on demand by us, together with associated debt recovery costs.

11.7           We reserve the right to include mechanisms to inhibit, limit or prevent normal operation of the Software and to activate these or to suspend the delivery of Services until you have made all payments due to us.

11.8           Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Australian dollars will be borne by you.

12              Security of your Credit Card

12.1           If we receive payment from you via credit card, we shall take reasonable care to make our payment process safe for you to use a credit card. Card payments may not be processed through pages controlled by us. We may use one or more online payment advisory service providers who will encrypt your card or bank account details in a secure environment. All purchases through them will be governed by their terms and conditions, which can be accessed through their website.

12.2           If you have asked us or our payment provider to remember your credit card details in readiness for your next purchase or subscription renewal, we will securely store your payment details. These details will be used only to process your automatic annual payments or other transactions which you have initiated.

13              Renewal Payments for Subscription Services

13.1           At least four (4) weeks before expiry of the period, for which you have paid Fees, we shall send you a message to your last known email address to tell you that your Subscription is shortly to expire and to invite you to renew, or, in respect of automatic renewal, to inform you that your Subscription will shortly renew.

13.2           At any time before expiry of your Subscription, you may use our Website or the PASS Solution to access your personal information and cancel your Subscription.

13.3           If you have elected automatic renewal of your Subscription, unless you cancel the Subscription, at the expiry of your Subscription we shall automatically take payment from your credit card or agreed form of payment of the sum specified on the notification message sent earlier and shall confirm the renewal of your Subscription for a further period by sending you an email message.

13.4           If you cancel your Subscription during the Subscription period, unless required by law, no refunds will be given for any unused portion of your Subscription.

14              Refunds

14.1           We only offer refunds in exceptional circumstances. Without limitation, you will not be eligible for a refund of any amounts paid with respect to the Services if you have not:

14.1.1                 provided true and correct information with respect to any relevant for Services;

14.1.2                 properly and accurately completed the relevant application with respect to the relevant Agency Check;

14.1.3                 properly provided all consents (including by signing and dating any pre-populated informed consent form) required by us with respect to the relevant Services; or

14.1.4                 properly provided all identification information required by us with respect to the relevant Services.

14.2           You are not entitled to any refund with respect to:

14.2.1                 data entry errors made by you;

14.2.2                 change of mind;

14.2.3                 selection by you of the wrong Agency Check type and/or reason for the Agency Check when completing the relevant request; and/or

14.2.4                 failure to properly complete a request, including by failing to sign, date and return any informed consent form required by us.

15               If you are dissatisfied with our services, you may be entitled to the benefit of the consumer guarantees in the Australian Consumer Law. In these circumstances or if you cancel and order, we may choose to reimburse you with a credit note redeemable for our Services within 12 months from the date of issue. The value of the reimbursement will be the purchase price paid by you after deducting our reasonable costs for: (a) the work undertaken by or for us in providing, or attempting to provide, the service; and (b) the administrative costs of processing and effecting the request for a refund, being $AUD10 (inc GST).  This refund-processing fee will be subtracted from any refund amount that is approved by us and will be retained by us.  To request a refund, please email enquiries@passtechnology.com Refund requests must include your first name and surname, date of birth, the reference number with respect to the relevant Services (if possible), and a brief description of why you request a refund. We will then assess the refund request and determine, in our absolute discretion, if you are eligible for a refund.

16               Taxes & GST

16.1           In this clause 16, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

16.2           For the purposes of these Terms, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under these Terms, the amount or consideration will not be increased on account of any GST payable on that supply.

16.3           Any consideration to be paid or provided for a supply make under or in connection with these Terms, unless specifically described in these Terms as GST inclusive, does not include an amount on account of GST.

16.4           Despite any other provision in these Terms, if a party (Supplier) makes a supply under or in connection with these Terms on which GST is imposed (not being a supply the consideration for which is specifically described in these Terms as GST inclusive):

16.4.1                 the consideration payable or to be provided for that supply under these Terms but for the application of this clause 16.4.1 (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and

16.4.2                 The amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

16.4.3                 If a payment to a party under these Terms is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

16.5           Except as otherwise specified in these Terms, the Fees and any other fees and charges payable by you under these Terms are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with these Terms or the Services, which are your responsibility. Without limiting the foregoing, you are solely responsible for any taxes, duties or charges imposed subsequent to the Commencement Date of these Terms.

17              Data and privacy

17.1           Pass Technology will only use Personal Information collected and stored by it (or to which it has access):

17.1.1                 for the purposes set out in it Privacy Policy, including to fulfil its day-to-day business operational needs and to make Improvements to the Software and/or to improve, enhance or expand the PASS Solution and the Services offered or to be offered by us to you and/ or third parties.

17.1.2                 as required by any applicable Law and, where applicable, under any agreement Pass Technology has with a Government Agency in relation to the provision of the Services (including specifically any agreement Pass Technology has with ACIC with respect to the National Police Checking Service established by ACIC); and

17.1.3                 where applicable, in accordance with Pass Technology’s Privacy Policy.

17.2           For further information, please see our Privacy Statement and Privacy Policy.

17.3           You acknowledge that use of the PASS Solution involves the collection, use and disclosure of Personal Information and Police History Information. Irrespective of whether or not you would otherwise be bound, you and we each undertake to comply with all applicable provisions of the Privacy Act as it the Privacy Act does apply.  You and we also agree to comply with  the  Data Protection Act 1998 (and any related legislation including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data, which is commonly referred to as GDPR) to the extent it or they relate to your use of the PASS Solution.

17.4           In respect of the Personal Information and Policy History Information you agree that you will:

17.4.1                 not disclose the information other than for the purpose for which the Applicant gave Informed Consent;

17.4.2                 implement safeguards to keep Personal Information and Police History Information secure;

17.4.3                  use reasonable commercial endeavours to secure the information against loss and unauthorised access, use, modification or disclosure;

17.4.4                 not collect, transfer, store or otherwise use Personal Information or Policy History Information outside Australia, or allow parties outside Australia to have access to Personal Information or Policy History Information, unless you have our prior written approval;

17.4.5                 not commit any act, omission or engage in any practice which is contrary to the Privacy Act;

17.4.6                 ensure that all Personnel who are required to deal with the Personal Information and Policy History Information are made aware of your obligations under these Terms.

17.5           If you become aware of, or suspect, that a breach of any of the obligations set out in this clause 17.5 has occurred, you must promptly notify us, in which case we may take such action as we consider appropriate.

17.6           You confirm that you are:

17.6.1                 authorised to store and use the personal data that you communicate through the PASS Solution;

17.6.2                 the legal owner of all Personal Information provided to us for the purposes of us providing the Services to you, to the extent that you collect it in relation to any individual, and we shall deal with that Personal Information in accordance with your instructions unless those instructions appear to us to risk breaching a law, in which case we may decline to take any action that you so instruct. You agree to indemnify us in respect of any loss or damage that we may suffer as a result of complying with your instructions.

17.7           You are solely responsible for obtaining and maintaining during our engagement all requisite authorisations required for you to operate the PASS Solution and for complying with all rules and laws applicable to you and your business.

18              Support and services

18.1           We may provide support services or Other Services to you in respect of the Software. You agree to be bound by our support terms and conditions, and such other terms and conditions we specify.

18.2           You and we will agree mutually convenient times for the delivery of the Services, and any Other Services. Where such dates are booked in advance, you understand that we are required to commit resources. You will remain liable to pay our costs if you cancel any advance bookings giving fewer than five (5) business days’ notice of cancellation. We agree to deploy staff who have reasonable levels of skill to provide Services and Other Services.

19              Supply of hardware

19.1           You shall, at your cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required to access the PASS Solution and otherwise receive the benefit of the Services;

19.2           The quantity and description of the Hardware (if any) shall be as set out in the Quote. We shall use reasonable endeavours to transfer to you the benefit of any warranty or guarantee given by the Hardware manufacturer to us. Our sole liability for performance of the Hardware is limited to returning the Hardware to the manufacturer for processing under the manufacturer’s warranty or guarantee and on the basis that return of the Hardware to us is within fourteen days of the date of delivery to you. All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.

20               Passwords

20.1           You have the sole responsibility for protecting the confidentiality of your password.  Use of your password by any other person to access the Website, the PASS Solution or our Services, may result in the immediate cancellation of your access and/or the Services.

20.2           Any use of your registration information by any other person, or third party, is strictly prohibited.  You agree to immediately notify Pass Technology of any unauthorised use of your password or email address or any breach of security of which you have become aware.

21               Third Party Websites

21.1           We have not reviewed any websites linked to the Website, and are not responsible for the contents of any of those websites, or the website of any third party.

21.2           You should seek permission prior to linking to our Website. Your linking to the Website is at your own risk.

22              Confidential information

22.1           Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information (“Confidential Information”) by the other party in order to perform its obligations under these Terms, provided that the information of one party shall be deemed not to constitute Confidential Information if it:

(a)   is or becomes publicly known other than through any act or omission of the receiving party;

(b)   was in the other party’s lawful possession before the disclosure;

(c)   is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d)   is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e)   is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

22.2           Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use  the other’s Confidential Information for any purpose other than the implementation of these Terms, for a period of seven years from disclosure of the Confidential Information.

22.3           Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms.

22.4           This clause shall survive termination of these Terms, however arising.

22.5           You agree that we may use your name and logo on our website, other promotional material and customer reference lists that we may provide to potential customers.

23              Disclaimer & Limitation of Liability

23.1           To the maximum extent possible under Law, our total liability arising out of or in connection with the Services, the PASS Solution and these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.

23.2           You acknowledge and agree that we make no representation or warranty of any kind in respect to the accuracy of any police history information; and we take no responsibility or liability for any omission or error therein.

23.3           You expressly understand and agree that Pass Technology, its affiliates, Personnel, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

23.4           We shall not be responsible for any loss, alteration or (unless we are in breach of these Terms) disclosure of your data. You agree that your sole and exclusive remedy resulting from any loss or damage to your data, shall be for us to use reasonable commercial endeavours to arrange for the lost or damaged data to be restored through any back-up controlled by us.

23.5           Despite any other provision of these Terms, Pass Technology’s total aggregate liability for any and all loss or damage suffered or incurred by you under or in any way connected with these Terms or the provision of the Services is limited to an amount equal to the Fees paid by you to Pass Technology in the previous twelve month period under these Terms.

24              Indemnity

24.1           You indemnify Pass Technology and its Personnel (those indemnified), and will hold those indemnified harmless, against all loss and damage suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:

24.1.1                 a breach of these Terms by you;

24.1.2                 the transmission of any requests or Agency Checks (including any loss or damages sustained or incurred by those indemnified in connection with complaints or claims relating to any requests or Agency Checks);

24.1.3                 any negligent or fraudulent act, error or omission on your part or of your Personnel;

24.1.4                 loss of or damage to any property or injury to or death of any person caused by any act or omission of you or your Personnel; or

24.1.5                 any claim by a third party against Pass Technology relating to the Services or the subject matter of these Terms.

25              Termination

25.1           Unless otherwise stated in the Quote, these Terms may be terminated by either party giving the other not less than 90 days’ notice expiring at the end of the calendar month in which an anniversary of the date on which the Quote was issued.

25.2           Either party may terminate these Terms immediately on written notice to the other if:

25.2.1                 the other is in material (or persistent or repeated) breach of these Terms which (if the breach relates to a failure to pay a Fee) is not remedied within 14 days after written notice requiring payment to be made;

25.2.2                 the other becomes insolvent or unable to pay its debts, enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation  or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over  the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or becomes unable to pay its debts.

25.3           You may terminate these Terms by giving us at least six months’ written notice within one month of our notifying you pursuant to clause 11.5 of a price increase (other than any “pass-through” increase) that is more than 2% above the increase in the Consumer Price Index (calculated since the date of the last increase to our price), if you give us such notice the notified increase shall not apply to you.

25.4           On termination of these Terms you shall forfeit all rights granted to you under these Terms and you agree that you shall immediately stop using all parts of the PASS Solution and delete or remove the Software from all computer equipment in your  possession and immediately destroy or (at our option) return all copies of it and the Documentation in your possession, custody or control to us and, in the case of destruction, certify such destruction us and all amounts due from you shall become immediately payable together, if we have terminated these Terms, the amount that would have been payable in respect of the notice period if you had given notice to us on the date on which the Agreement is terminated.

26              Suspension of Services

26.1           Notwithstanding any other provision in these Terms, we reserve the right to withdraw or suspend any Services or your access to PASS Solution for any reason that we deem, in our absolute discretion, appropriate. We may, at our absolute discretion and without giving any reason, refuse to provide Services or any service to any person or persons.

27              Cookies

27.1           When you visit the Website we may collect certain information by automated means, such as cookies, web beacons and web server logs.  The information we may collect in this manner includes IP address, unique device identifier, browser characteristics, device characteristics, operating system, language preferences, referring URLs, information on actions taken on our website, dates and times of visits and other usage statistics.

27.2           A ‘cookie’ is a file that websites send to a visitor’s computer (or other connected device) to uniquely identify the visitor’s browser or to store information or settings in the browser.  Our Website utilises the following cookie types:

27.2.1                 Technical cookies help make the Website usable by enabling functions like page navigation and access to secure areas of the website. The website cannot function properly without these cookies;

27.2.2                 Preference cookies enable the Website to remember information that changes the way the website behaves or looks such as your preferred language or your region;

27.2.3                 Statistic cookies help PASS to understand how visitors interact with websites by collecting and reporting information anonymously; and

27.2.4                 Marketing cookies are used to track visitors across websites. This is so that we can display ads that are relevant and engaging for the individual user and thereby more valuable for publishers and third party advertisers.

27.3           If you do not want to receive cookies, you can to opt-out by changing your browser settings to decline them. If you choose to decline cookies you may not be able to access and view all or parts of the Website.

28              Audits

28.1           We may conduct audits relevant to your compliance with these Terms.  Audits may be conducted of:

28.1.1                 Your operational practices and procedures as they relate to your use of the PASS Solution and the receipt of use of the Services;

28.1.2                 Your compliance with your privacy and confidentiality obligations under these Terms; and

28.1.3                 Any other matter determined by us to be relevant to the use of the PASS Solution, the Software and the Services or the performance by you of these Terms.

28.2           You must cooperate and promptly participate in any audits conducted by or on behalf of us, including granting to us and our authorised Personnel access to your premises, data, records and other material (and facilities to copy, if required) relevant to your use of the PASS Solution and the subject matter of these Terms,

28.3           We shall provide you with at least three (3) Business Days’ prior notice of any audit we wish to undertake pursuant to this clause 28 and agree that the audit will be subject to your reasonable security requirements and will be conducted in such a way so as not to adversely impact your day to day business operations.

28.4           Each Party must bear its own costs associated with any audit pursuant to this clause 28.

29              General

29.1           The failure to insist upon strict performance of any of your obligations under these Terms or to exercise any of the rights or remedies to which we are entitled under these Terms shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any part of these Terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

29.2           If any of the terms of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

29.3           These Terms, together with the Quote (and any document expressly referred to in it), represents the entire agreement between us in relation to the provision of the PASS Solution and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.  You acknowledge that, in entering into these Terms, you  have not relied on any representation, undertaking or promise given or which can be  implied from anything said or written in negotiations between us prior to entering into these Terms which is not expressly stated in these Terms.

29.4           Except where these terms and conditions expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under these terms and conditions.

29.5           You may only assign its rights under these terms and conditions with the prior written consent of us.

29.6           Termination of these terms and conditions will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.

29.7           Neither party is liable for any failure to perform or delay in performing its obligations under these terms and conditions if that failure or delay is due to anything beyond that party’s reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.

29.8           Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to these terms and conditions and any transaction contemplated by it.

29.9           Any indemnity or any obligation of confidence under these terms and conditions is independent and survives termination of these terms and conditions. Any other term by its nature intended to survive termination of these terms and conditions survives termination of these Terms.  In particular, clauses 7.5, 10.1, 10.3, 10.6, 22, 17, 22, 23, and 24.

29.10         Each clause of these terms and conditions and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of these terms and conditions will continue in force.

29.11         Except where these terms and conditions expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

29.12         These Terms are governed by the laws of New South Wales, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

30              Definitions

ACIC means Australian Criminal Intelligence Commission the principal provider of Police History Information.

Agency Check includes Police Checks, Police History Information, VEVO Checks, Bankruptcy Checks, International Checks and any other check, verification, document or data file containing Agency Information that Pass Technology provides to you in conducting the Services.

Agency Information includes the information about an Applicant/individual received by Pass Technology from a Government Agency or other authorised third party in respect of an Agency Check including without limitation Police History Information and Visa Entitlement Information and providing the Services.

Applicant means a person in relation to whom you or a company seeks a criminal history check.

Applicant’s Informed Consent means a consent form (in physical or electronic format) that is completed, dated and signed by the Applicant; or, if the Applicant is under 18 years of age, completed, dated and signed by a parent or legal guardian.

Bankruptcy Check means the document or data file that Pass Technology provides to you and others containing personal insolvency information received from the Australian Financial Security Authority about an individual.

Business Day means a day in the State of New South Wales, Australia that is not a Saturday, a Sunday or a gazetted public holiday in that State.

Business Hours means the period between 9.00am and 5.00pm on a Business Day.

Confidential Information of a Disclosing Party means:

(a)   the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of these Terms;

(b)   information that is by its nature confidential;

(c)    information that is designated by the Disclosing Party as confidential; and

information the Receiving Party knows, or ought to know, is confidential;

(i)     all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and

(ii)    all copies of the information, notes and other records referred to in paragraphs (a) and (b), but excludes information that:

♦  the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or

♦  is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).

DIBP means the Australian Government Department of Immigration and Border Protection.

Fees means that amount payable by you to us for the to use the PASS Solution or receive the Services.

Governmental Agency means any governmental, semi-governmental or judicial entity or authority, in Australia or overseas, and including without limitation ACIC and DIBP.

Harmful Code means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.

Intellectual Property Rights means the current and future registered and unregistered rights comprised in:

(a)   any patents, patentable invention, discoveries, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;

(b)   computer program material (including computer software computer object code, computer source code, user manuals, tables, charts, flow charts, programming manuals, algorithms, formulas, diagrams, plans, drawing techniques, data, data structures, logical ideas, concepts and processes);

(c)    any application or right to apply for registration of any of the rights referred to in paragraph (a); and

(d)   all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia).

International Check means the document or data file that Pass Technology provides to you and others containing Agency Information received by Pass Technology from a Government Agency or other authorised third party located in a jurisdiction outside of Australia.

Laws means all laws, rules and regulation in any jurisdiction, including (without limitation):

(a)   the common law and equity;

(b)   any applicable statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws) in force from time to time in Australia, whether made by the Commonwealth, a State, Territory or a local government, and includes the common law and rules of equity as applicable from time to time;

(c)    any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against you or Pass Technology (as the case may be) or which is issued under an instrument referred to in paragraph (b), and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this Terms; and

(d)   with respect to any International Check, anything specified in sub-paragraphs (a), (b) or (c) of this definition applicable in the relevant overseas jurisdiction.

Pass Technology Systems means the software and systems used by us to deliver Services, including but not limited to PASS Phoenix, PASS Hydra or PASS Olympus.

Personal Information means such information or an opinion (including information or an opinion forming part of a database) whether true or not and whether in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion (or such other meaning that may be given to the term in the Privacy Act).

Personnel means officers, employees, agents and contractors, including representatives.

Police Check means the document or data file that Pass Technology provides to you containing the relevant Police History Information.

Police History Information means the information collected for the purposes of providing the Services, information collected for the purposes of a nationally coordinated criminal history check and information released as part of a nationally coordinated criminal history check in relation to an Applicant

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means:

(a)        the Privacy Act;

(b)        any modification or re-enactment of it or legislation enacted in substitution for it (or any part of it);

(c)        any rules, regulations, rulings or statutory instruments issued under it, as amended or replaced from time to time; and

(d)        any legislation (to the extent such legislation applies to you or us) from time to time in force in:

(i)         Australia; and

(ii)        any other jurisdiction where the Services are provided,

in each case, which relate to or affect the privacy, protection, collection, handling, storage, processing, use or disclosure of Personal Information, and includes any modification or re-enactment, substitution or re-issue of all, or any part of, or any provision of, such laws, rules, regulations, rulings or statutory instruments.

Quote means a quote by prepared by us in relation to the supply by us of the PASS Solution or the Services.

Receiving Party means a party to these Terms who obtains Confidential Information of the other party to these Terms.

Services means the services provided by Pass Technology to you under these Terms, including specifically the provision of Agency Checks.

VEVO Check means the document or data file that Pass Technology provides to you and others containing the relevant Visa Entitlement Information.

Visa Entitlement Information means the visa status, work entitlement(s) and other information received from DIBP about an individual.


31. References to certain general terms

Unless the contrary intention appears, a reference in this Agreement to:

(variations or replacement) a document (including this Agreement) includes any variation or replacement of it;

(reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(singular includes plural) the singular includes the plural and vice versa;

(person) the word “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any Government Agency;

(executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

(dollars) Australian dollars, dollars, A$ or $ is a reference to the lawful currency of Australia;

(calculation of time) a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day;

(reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

(next day) If an act under this Agreement to be done by a party on or by a given day is done after 5.00pm on that day, it is taken to be done on the next day.

(meaning not limited) the words “including”, “for example” or “such as” when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

(time of day) time is a reference to Sydney, Australia time; and

(reference to any thing) any thing (including any amount) is a reference to the whole and each part of it.

(headings) Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement.

Privacy Statement – https://passtechnology.com/privacy-policy/

United Kingdom

These terms and conditions (“Agreement”) apply to the quote (the “Quote”) prepared by [PASS Software Limited] (registered in England with number [05065939]) (“PASS”, or “us” or “we”), and the customer named in the Quote (“Customer” or “you”), in relation to the supply by us of the software (comprising all computer software and data supplied with it) (the “Software”) specified in the Quote, associated media, printed materials and documentation (“Documentation”) and related support and maintenance services (“Services”). If we agree to provide you with Software delivered on a SaaS model that delivery will be subject to our separate SaaS terms and conditions. In this agreement we refer to the Software, Documentation and Services as the “PASS Solution”.

  1. Terms of licence
    1. Subject to your adhering to the terms of this Agreement and the following terms and conditions we grant you a non-exclusive, non-transferable right to use the PASS Solution for your own business needs in the United Kingdom. Unless otherwise stated in the Quote, this licence is limited to you alone using the PASS Solution. The Quote will not be binding on us until you have formally accepted it by signing an returning a the Quote to us.
    2. Your usage of any part of the PASS Solution constitutes acceptance of the Quote and this Agreement. If you breach this Agreement we may suspend your rights to use the PASS Solution.
    3. You may download, install (as appropriate) and use the Software for your internal business purposes only. Unless otherwise stated in the Quote you may only use the PASS Solution in connection with a single database with a single set of data. We licence and authorise you to use the Documentation only to support of the proper, lawful and permitted use of the Software (you may not use the Documentation for any other purpose).
    4. You undertake that except to the extent permitted by any applicable law which is incapable of exclusion by contract you shall not (and shall not attempt) to:
      1. copy (except where to the extent copying is reasonably incidental to normal and proper use, back-up or operational security of the Software), modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the PASS Solution in any form or media or by any means; or attempt to copy, reverse-compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the PASS Solution or attempt to gain unauthorised access to any part of the PASS Solution or any connected system (and you agree to use all reasonable endeavours to prevent any unauthorised access to, or use of, PASS Solution);
      2. access all or any part of the PASS Solution in order t o build a product or service which emulates or competes with any part if the PASS Solution;
      3. use the PASS Solution to facilitate any illegal activity;
      4. use the PASS Solution to provide a bureau or other service to third parties;
      5. to license, sell, rent, lease, transfer, assign, distribute, or otherwise make any part if the PASS Solution available to any third party;
      6. disclose any information which is confidential to us or to seek (whether directly or indirectly) to circumvent our interests or to deploy or use (or assist another to deploy or use) information or processes learned by you as result of your dealings with us or the PASS Solution otherwise than for your legitimate business purposes that are not in competition with or deleterious to us;
      7. to make alterations to, or modifications of, the whole or any part of the PASS Solution nor permit the PASS Solution or any part of it to be combined with, or become incorporated in, any other programs or material, other than for the purpose of creating and maintaining necessary interfaces designed and maintained by us or obscure any copyright or similar notice published by us; and
      8. to permit use of the PASS Solution otherwise in accordance with this Agreement.
    5. You agree to include our copyright notice of on copies you make of any part of the PASS Solution. All third-party software products supplied to you under the Quote are licenced to you under the terms (including but not limited to the restrictions on use, warranty, and support) of the original licensor’s agreement which is supplied with such third party software and you shall comply with such terms and conditions at all times.
    6. You acknowledge that all intellectual property rights in the PASS Solution throughout the world belong to us (or our licensors), that rights in the PASS Solution is licensed (not sold) to you on and subject to the terms of this Agreement, and that you have no rights in, or to, the PASS Solution other than the right to use it in accordance with this Agreement.
    7. The integrity of the PASS Solution may be protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the PASS Solution are not misappropriated. Whether TPM is in place or otherwise, you must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.
  2. Payments
    1. You shall pay us in accordance with the payment terms stated in the Quote. Unless otherwise stated in the Quote all prices are stated exclusive of VAT which shall be payable in addition to the prices stated. Unless otherwise stated in the Quote, we may invoice you monthly in advance (in relation to ascertainable fees) and monthly in arrear in respect of all other fees. Invoices are payable within 30 days of the date on which they are raised.
    2. We may change the amounts charged to you at any time (but you may be entitled to terminate as provided in clause 8.3). We shall give you at least one month’s notice if We intend to change any of the amounts payable by you while you continue to use the Services.
    3. If you fail to make any payment due to us by the due date for payment, then we may charge you interest on the overdue amount at the rate of 8% per annum above HSBC PLC’s base lending rate from time to time or the maximum permitted by law. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You shall pay the interest immediately on demand by us, together with associated debt recovery costs.
    4. We reserve the right to include mechanisms to inhibit, limit or prevent normal operation of the Software and to activate these or to suspend the delivery of Services until you have made all payments due to us.
  3. Data and privacy
    1. You and we each undertake to comply with all applicable provisions of the Data Protection Act 1998 (and any related legislation including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data, which is commonly referred to as GDPR) to the extent they relate to your use of the PASS Solution.
    2. You confirm that you are authorised to store and use the personal data that you communicate through the PASS Solution. We confirm that all data files and records that contain personally identifiable data or personal sensitive data received or held by us in providing the PASS Solution to you are treated by us as data subject information (“DSI”).
    3. You agree that if we receive instructions purporting to come from a data subject, we may delete all DSI that we believe needs to be destroyed to ensure compliance with applicable laws, rules and regulations and you shall hold us harmless in respect of any liability or obligation we may incur as a result of complying with the request.
    4. The policies that we adopt are designed to ensure that the software and hardware under our control and on which we host the PASS Solution and on which DSI is held, processed or transmitted are compliant with relevant privacy laws and we specify that they must use only end-to-end encrypted services using current optimum practices for security. We do not permit our staff to store DSI on any laptop or removable drive unless the data comprising the DSI is encrypted to a standard in line with industry best practice and standards available at that time. We agree not to breach any United Kingdom law relating to the safeguarding and protection of personal data and individual privacy to the extent that such laws apply to Clients (in their capacity as such).
    5. You are the legal owner of all DSI to the extent that you collect it in relation to any individual as a result of your or the PASS Solution, and we shall deal with that DSI in accordance with your instructions unless those instructions appear to us to risk breaching a law, in which case we may decline to take any action that You so instruct. You agree to indemnify us in respect of any loss or damage that we may suffer as a result of complying with your instructions. You shall own all right, title and interest in and to all of the data created by you using the PASS Solution. We shall not be responsible for any loss, alteration or (unless we are in breach of clause 3.4) disclosure of your data. You agree that your sole and exclusive remedy resulting from any loss or damage to data, shall be for us to use reasonable commercial endeavours to arrange for lost or damaged data to be restored through any back-up controlled by us. You grant us a sole and exclusive royalty-free irrevocable licence to use all non-DSI specific data created or learned by us from your using the PASS Solution. We may use this data on anonymous and aggregated bases.
    6. You are solely responsible for obtaining, and maintaining all requisite authorisations required for You to operate the PASS Solution and for complying with all rules and laws applicable to you and your business.
  4. Support and services
    1. Subject to your paying all fees due to us, we shall provide support services to you in respect of the Software. You agree to be bound by the support terms and conditions attached in the Schedule to this Agreement.
    2. You and we will agree mutually convenient times for the delivery of the Services. Where such dates are booked in advance, you understand that we are required to commit resources. You will remain liable to pay our costs if you cancel any advance bookings giving fewer than five (5) business days’ notice of cancellation. We agree to deploy staff who have reasonable levels of skill to provide Services.
  5. Supply of hardware
    1. The quantity and description of the Hardware shall be as set out in the Quote. We shall use reasonable endeavours to transfer to you the benefit of any warranty or guarantee given by the Hardware manufacturer to us. Our sole liability for performance of the Hardware is limited to returning the Hardware to the manufacturer for processing under the manufacturer’s warranty or guarantee and on the basis that return of the Hardware to us is within fourteen days of the date of delivery to you. All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
    2. The Hardware is supplied to you on the basis that you are wholly responsible for selecting the Hardware because it is suitable for your business and you have carried out all necessary due diligence to ensure that it is suitable for your requirements. The Hardware shall be at your risk following delivery to you. Ownership of the Hardware shall pass to you when we have received in full in cleared funds all sums due to us in respect of the Hardware.
  6. Warranty and liability
    1. You accept that the PASS Solution is supplied to you on the basis that you have determined (in reliance on any functional specification referred to in the Quote) its fitness for purpose for your own specific needs.
    2. We warrant that the Software will if properly deployed and used in accordance with our instructions perform substantially in accordance with the functions described in the functional specification referred to in the Quote. If you notify us in writing that we are in breach of the warranty in the previous sentence we may (at our sole option) repair or replace the PASS Solution (provided that you make available all the information that may be necessary to assist us in resolving the defect or fault and access to all relevant premises, equipment and personnel, including sufficient information to enable us to understand and recreate the defect or fault). Save as provided in the previous sentence we have no liability in respect of the warranty in this clause 6.2 and all other warranties, conditions and other terms implied by statute or common law are (to the fullest extent permitted by law) excluded from this Agreement.
    3. We shall maintain with a reputable insurance company a policy or policies of insurance providing no less than £5,000,000 worth of cover in respect of risks which may be incurred by us arising out of the performance of this Agreement and shall provide a certificate evidencing such insurance upon request.
    4. Nothing in this Agreement excludes or limits our liability for:
      1. death or personal injury caused by our own negligence; or
      2. our own fraud or fraudulent misrepresentation.
    5. We shall have no liability to you (and you shall not be entitled to terminate this Agreement) if we are prevented from or delayed in performing our obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond our reasonable control.
    6. Subject to clauses 6.4 and 6.5:
      1. we shall not be liable for any special, indirect, consequential or pure economic loss or for the loss or corruption of data or information;
      2. our total liability shall not exceed the aggregate of the fees paid by you for the Software in the twelve months prior to the relevant liability arising or (if higher) the net amount we recover pursuant to the insurance policy referred to in clause 6.3.
    7. You agree that this clause 5 operates to limit liability the liability of the acts or omissions of our affiliates, employees, agents and sub-contractors.
  7. Confidential information
    1. Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information (“Confidential Information”) by the other party in order to perform its obligations under this Agreement, provided that the information of one party shall be deemed not to constitute Confidential Information if it:
      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party’s lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
      4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
      5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement, for a period of seven years from disclosure of the Confidential Information.
    3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement.
    4. This clause shall survive termination of this Agreement, however arising.
    5. You agree that we may use your name and logo on our website, other promotional material and customer reference lists that we may provide to potential customers.
  8. Termination
    1. Unless otherwise stated in the Quote, this Agreement may be terminated by either party giving the other not less than 90 days’ notice expiring at the end of the calendar month in which an anniversary of the date on which the Quote was issued.
    2. Either party may terminate this Agreement immediately on written notice to the other if:
      1. subject to clause 6.5, the other is in material (or persistent or repeated) breach of this agreement which (if the breach relates to a failure to pay a fee) is not remedied within 14 days after written notice requiring payment to be made;
      2. the other becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986).
    3. You may terminate this agreement by giving us at least six months’ written notice within one month of our notifying you pursuant to clause 2.2 of a price increase (other than any “pass-through” increase) that is more than 2% above the increase in the Retail Prices Index published by the Office for National Statistics of the United Kingdom Government (calculated since the date of the last increase to our price), if you give us such notice the notified increase shall not apply to you.
    4. On termination of this Agreement you shall forfeit all rights granted to you under this Agreement and you agree that you shall immediately stop using all parts of the PASS Solution and delete or remove the Software from all computer equipment in your possession and immediately destroy or (at our option) return all copies of it and the Documentation in your possession, custody or control to us and, in the case of destruction, certify such destruction us and all amounts due from you shall become immediately payable together, if we have terminated this Agreement pursuant to clause 8.4, the amount that would have been payable in respect of the notice period if you had given notice to us in accordance with clause 8.1 on the date on which the Agreement is terminated.
  9. General
    1. All copyright, rights in relation to databases, design rights, registered designs, patents, trade and service marks (registered and unregistered), know-how, rights in or relating to confidential information or any other intellectual property rights or industrial property rights or other rights of a similar nature anywhere in the world associated with any ideas, concepts, techniques, inventions, processes or works of authorship developed or created by us or our personnel or contractors during the course of providing the PASS Solution shall belong exclusively to us.
    2. Where requested by you, we shall enter into a three-party source code escrow agreement in respect of the Software with you and the escrow agent which we have selected, the charges and fees associated with such arrangement being at your expense.
    3. This Agreement is binding on you and us and on our respective successors and assigns. You and we may each transfer, assign, charge or otherwise dispose of this Agreement, or any of our rights or obligations arising under it provided that you shall not do so without first obtaining our written consent.
    4. Our failure to insist upon strict performance of any of your obligations under this Agreement or to exercise any of the rights or remedies to which we are entitled under this Agreement shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any part of this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
    5. If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
    6. This Agreement together with the Quote (and any document expressly referred to in it) represents the entire agreement between us in relation to the provision of the PASS Solution and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing. You acknowledge that, in entering into this Agreement, you have not relied on any representation, undertaking or promise given or which can be implied from anything said or written in negotiations between us prior to entering into this Agreement which is not expressly stated in this Agreement.
    7. Both parties shall comply with all applicable laws, statutes and regulations relating to anti- bribery and anti-corruption, including but not limited to the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
    8. Neither party shall (except with the prior written consent of the other) during the term of this Agreement, and for a period of one year after it has terminated, solicit the services of any senior staff of the other party who have been engaged in the management of this Agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of the other party.
    9. This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.

 

Schedule
Support terms and conditions
 

  1. Provision of Services
    1. We shall provide a telephone-based Help-Desk for software and technical support for the Software and the SaaS Service, available during its usual business hours (“Support Services”). We shall also provide an error correction and software updating service. We shall endeavour to comply with the anticipated target response times and target fixes shown at the end of this Schedule.
    2. Upon receipt of a written support request from you identifying a fault in the Services, PASS shall attempt to carry out diagnosis remotely by telephone and remote access link (where remote access is available) of the reported fault.
    3. If the support request relates to interface with other software packages or environments, or similar issues where the fault cannot be diagnosed as being clearly caused by the supported Services, PASS will use its reasonable endeavours to assist you in finding a resolution to the problem, subject to the acceptance by you of the additional charges to be levied, as outlined in paragraph 3 below.
  2. Additional charges
    Unless otherwise stated in the Quote, PASS will levy additional charges for out of our usual business hours service at our current rates (currently an initial charge of £100 and then £100 per hour or part of an hour).
  3. Variation
    PASS operates an online ordering system for existing customers and you agree to make use of the online ordering system so that quotes managed using the online system are subject to this Agreement. If you change the software licensed from us or the Services used the changes to support charges will take immediate effect, unless otherwise stated in the Quote related to the relevant software or Services.
  4. Customer requirements
    It is a condition of these terms and conditions that you report faults.
  5. Limitations and exclusions
    1. PASS will use reasonable commercial endeavours to respond to calls from you for the Support Services and provide updates of status and possible remedies reasonably promptly.
    2. Where required and as determined by PASS as the appropriate response, a site visit will be arranged. No guarantee or warranty is given of any times for response or that PASS will be able to rectify any problem within a particular time-scale. Any modification or error correction to software may be provided by secure FTP or email. If other delivery means, for example courier service, is required the delivery will be arranged at your cost.
    3. Our obligation to provide the Support Services is conditional upon the proper use of the Software and Services and PASS is not obliged to provide Support Services where the faults arise from any of the following: misuse, incorrect use of or damage to the Software from whatever cause, including failure or fluctuation of electrical power; failure to maintain the necessary environmental conditions for use of the Software; use of the Software in combination with any equipment or software not provided by PASS or not designated by PASS, or any fault in any such equipment or software; any breach of your obligations under this Agreement, any modification to the Software which is not expressly authorised by PASS or operator error.
    4. Unless otherwise agreed by us in writing these support terms shall apply to the most recent generally available Release or Version of the Software (“LV”) as well as the immediately preceding Release or Version (“LV-1”). Customer understands and agrees that PASS shall have no obligation to support any Release or Version of the Software that is older than LV- 1. For the purposes of this paragraph, the term “Release” shall be defined as a specific edition of the Software, designated by a number located to the left of the first decimal point (such as Release 1.x or Release 2.x), and the term “Version” shall be defined as a specific edition of the Software, designated by a number located to the right of the first decimal point (such as Version x.1 or Version x.2).
    5. Our priority categorisations and target response times are as stated below:

 

Priority level Level Business Impact Anticipated Target Response Anticipated Target Fix
1 ‘Priority 1’ – where Customer’s operations are significantly affected. The Licensed Software or major components of the Licensed Software are inoperable or not working correctly and no workaround exists. 1 business hour Emergency Service Pack
2 ‘Priority 2’ – where a minor component or function of the Licensed Software is inoperable or not working correctly, or a Problem exists in a major component, but a temporary work-around is available. 1 business day Next planned release
3 ‘Priority 3’ – where a problem in the Licensed Software is detected which has minimal impact on the daily operations, or for which a permanent work-around or fix is available. 2 business days Next planned major release
4 ‘Priority 4’ – a cosmetic change is proposed or a new feature is requested. 5 business days Next user group review
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