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’) (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”). ”PASS Solution” refers to the Software, Documentation and Other Services (or any part thereof).
1.3 By using the Website or otherwise registering for, agreeing to licence and/or using, the PASS Solution, you agree that you:
(a) have read and understood these terms and conditions (“Terms”); and
(b) are bound by, and will abide by, these Terms.
1.4 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. If you breach these Terms, we may, subject to Clause 26 suspend your rights to use the PASS Solution (in whole or in part) without notice to you
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 effect from the date that we notify you in writing of the change. Before you continue, we recommend you keep a copy of the Terms for your records.
3 Performance of Services
3.1 We will, from when you pay us the Fees:
(a) provide the Services (if relevant); and
(b) permit you to access and use the PASS Solution 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) in writing.
4.3 We licence and authorise you to use the Documentation only to support your proper, lawful and permitted use of the Software.
4.4 You undertake that, except to the extent permitted by any applicable law, you shall not, nor attempt or induce any third party to:
(a) copy (except 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
(b) copy or attempt to copy, interfere with, 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;
(c) use the PASS Solution in relation to or to facilitate any illegal activity;
(d) 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; or
(e) to make alterations to, or permit the PASS Solution to be combined with, or incorporated in, any other programs.
4.5 You agree to not change, obscure or remove any notices (including copyright or disclaimer notices) we include in or on the PASS Solution (or any part thereof).
5 Access to the PASS Solution
5.1 You must employ all reasonable operating and security requirements, and any procedures specified by us from time to time relating to:
(a) access to, and storage of, the PASS Solution;
(b) the use of the PASS Solution and/or Services, (including in respect of passwords and other security information); and
(c) protect our Intellectual Property Rights in the Software.
5.2 You must not interfere with or knowingly introduce or cause to be introduced, any Harmful Code into the Software, our Website or any other of PASS System.
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:
(a) we are not responsible for Agency Information (including without limitation Police History Information or Visa Entitlement Information) provided to you on any Agency Check;
(b) 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;
(c) 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 or if it is delayed or unable to provide information to you because of the action or inaction of the relevant third party; and
(d) Agency Checks are subject to disclaimers specified by the relevant Government Agency, including the disclaimer specified by ACIC that appears on Police Check;
(e) we cannot undertake and/or release any a Police Check and Police History Information without first receiving from the Applicant:
(i) the Applicant’s Application and Applicant’s Informed Consent Form;
(ii) the prescribed identification documents and information;
(iii) confirmation that the Applicant agrees to their identification being checked with the issuer or official record holder; and
(iv) confirmation that the Police Check may be shared with You.
7 Your Obligations
Information you provide to us
7.1 You are solely responsible for lodging all requests in the Software under your unique username and password.
7.2 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), except to the extent that Pass Technology has caused or contributed to the making of the complaint, in which case Pass Technology will contribute to such reasonable costs to that extent.
Information we provide to You
7.3 You must not disclose and only use the Police Check and Policy History Information for the purpose for which the Applicant gave informed consent, as per the Applicant’s Informed Consent.
7.4 You must implement the Safeguards and ensure that all Personnel who deal with the Police Checks and Police Historical Information are aware of Your obligations under this Agreement.
7.5 You must destroy or securely dispose of all hard and electronic copies (including, to the extent it is technically possible) of each Police Check and all Police History Information within twelve (12) months following receipt of the check/information, unless a longer document retention period is required by Applicable Law, in which case You must dispose of the check/information within one (1) month following the end of the required document retention period.
Compliance with Laws & Directions
7.6 You shall:
(a) use best endeavours to comply with all applicable Laws, including Privacy Laws;
(b) not collect, transfer, store or otherwise use the Police Checks or Police History Information outside Australia or allow parties outside Australia to access Police Checks or the Police History Information, unless a Permitted Offshore Transfer applies;
(c) comply with any directions or guidelines in relation to Personal Information or Police History Information as notified to You in writing by a relevant Government Agency or Pass Technology;
(e) comply with our reasonable directions, policies and procedures relating to the use of the Software as communicated to you from time to time; and
(f) not act in a way that may expose us to the risk of any legal or administrative action, may interfere with or disrupt our business and the provision of services to third parties.
7.7 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:
(a) to conduct any Agency Check that is the subject of your request for Services;
(b) as required by us to provide the Services and perform our obligations under these terms and conditions; and
(c) to comply with Pass Technology’s obligations under agreements it has with suppliers of information the subject of the Services, including any agreement Pass Technology has with the ACIC with respect to the provision of Police Checks.
Accuracy of Information
7.8 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 (including an invalid or incorrect Results) 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.
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 notic[Legal1] e to us at email@example.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 IP
10.1 Unless we agree in writing to the contrary, we (or a third party with whom we have an agreement, such as the relevant Government Agency) is the owner of and retains all Intellectual Property Rights with respect to the Website, Pass Technology Systems, the Documentation and PASS Solution and other materials supplied or made available to you under or in connection with these Terms. 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 Australia for the term of our engagement to use the PASS Software pursuant to these Terms for the purpose of receiving the Services.
10.3 Subject to clause 7.5, we grant to you a royalty-free, perpetual and non-exclusive licence for Australia to use any Agency Information in your lawful 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 promptly 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 in the course of us providing the Services.
Licence to use your information
10.5 You grant us a non-exclusive, royalty-free, irrevocable perpetual licence to use all non-Personal Information data that came into existence during the provision of the Services and your use of the Software. We shall use this data on anonymous and aggregated basis.
10.6 You also grant to ACIC the right to use information, including Personal Information, that came into existence during the provision of the Services and your use of the Software for the purposes of reviewing, monitoring, evaluating and enhancing the services it provides and reviewing, monitoring and evaluating its contractual relationship with Pass Technology.
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, 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.
11.3 If you require Other Services, we shall agree Fees and deliverables, and the payment terms, associated with delivery of those Other Services.
11.4 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.
11.5 If you fail to make any payment due to us by the due date, we may suspend your use of the Software and charge you interest on the overdue amount(s) at the rate of the Reserve Bank of Australia Cash Rate from time to time plus 6%, accruing on a daily basis from the due date until the date of actual payment of the overdue amount.
12 Security of your Credit Card
12.1 Credit card payments may not be processed through pages controlled by us. We may use one or more online payment service providers. All purchases through them will be governed by their terms and conditions, which can be accessed through their website.
13 Renewal Payments for Subscription Services
13.1 Approximately four (4) weeks before expiry of the period, for which you have paid Fees, (Subscription) we shall send you a message to your last known email address to tell you that your Subscription is shortly to expire. Unless you cancel the Subscription, we shall automatically take payment from your credit card or agreed form of payment of the sum specified on the notification message sent to you and shall confirm the renewal of your Subscription for the same period as your Subscription.
13.2 At any time before expiry of your Subscription, you may notify us in writing by email (firstname.lastname@example.org), on our Website or through the Software (where available) to cancel your Subscription.
13.3 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.
14.1 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 or use of the Software if you or the Applicant has not:
(a) provided true and correct information;
(b) properly and accurately completed the relevant application with respect to the relevant Agency Check;
properly provided all consents and documents specified in paragraph 6.2(e) required by us with respect to the relevant Services.
14.2 You are not entitled to any refund with respect to data entry errors by you or the Applicant; selection of the wrong type and/or reason for the Agency Check or failure to properly complete a request.
14.3 Without limiting paragraphs 4.1 and 4.2, 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.
14.4 To request a refund, please email email@example.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.
15 Taxes & GST
15.1 If we make a supply under or in connection with these Terms on which GST is to be imposed, You shall pay an amount equal to the GST payable on that supply.
15.2 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.
16 Data and privacy
16.1 Pass Technology will only use Personal Information collected and stored by it (or to which it has access):
(b) as required by any applicable Law and, where applicable, under any agreement Pass Technology has with a Government Agency in relation to matters relevant 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
16.2 For further information, please see how we handle personal information[Legal2] .
16.3 You acknowledge that use of the PASS Solution involves:
(a) the collection, use and disclosure of Personal Information and Police History Information that is required to complete and submit a request for an Agency Check and to obtain Police History Information; and
(b) the collection and use and possible disclosure by Pass Technology, the Applicant and/or You of Police History Information.
16.4 Irrespective of whether or not you would otherwise be bound by the Privacy Act 1988 (Cth), you and we each undertake to comply with all applicable provisions of the Privacy Laws as if were an APP Entity.
16.5 In respect of the Personal Information and Policy History Information you agree that you will:
(a) not disclose the information other than for the purpose for which the Applicant gave Informed Consent;
(b) implement Safeguards to keep Personal Information and Police History Information secure;
(c) use reasonable commercial endeavours to secure the information against loss and unauthorised access, use, modification or disclosure;
(d) 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;
(e) not commit any act, omission or engage in any practice which is contrary to the Privacy Laws;
(f) 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.
16.6 You must notify Pass Technology immediately (and, in any case within 24 hours) if you become aware of a suspected, alleged or actual, breach of any of the obligations set out in these Terms, including this clause 16.6, by you or your Personnel. In these circumstances, You shall establish and implement appropriate steps to remedy and/or prevent the breach or any further breach.
16.7 You confirm that you are the legal owner of all Personal Information You provide to us for the purposes of us providing the Services or are authorised to use and share with us the Personal Information that you share with us and enter into the Software.
16.8 You are solely responsible for obtaining and maintaining during our engagement all requisite authorisations required for you to operate the PASS Solution and receive the Services, and for complying with all rules and laws applicable to You and your business. You agree to indemnify us in respect of any loss or damage that we may suffer as a result of Your breach of this paragraph.
17 Other Services
17.1 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.
17.2 You and we will agree mutually convenient times for the delivery of the support 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 the support services and Other Services.
18 Supply of hardware
18.1 You shall, at your cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required to access/use the PASS Solution and otherwise receive the benefit of the Services.
19.1 You (and your Personnel) have the sole responsibility for protecting the confidentiality and integrity of your password(s) and log in credentials. Use of your password / credentials by any other person to access the Website, the Software or our Services, may result in the immediate cancellation of your access and/or the Services.
19.2 You agree to immediately (and, in any case, within 24 hours) notify Pass Technology of any unauthorised use, breach or attempted breach of security of which you have become aware.
20 Third Party Websites
20.1 We have not reviewed any websites linked to the Website, and are not responsible for the contents of any website of a third party.
20.2 You should seek permission prior to linking to our Website, which is at your own risk.
21 Confidential information
21.1 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.
21.2 Each party shall hold the other’s Confidential Information (and Confidential Information in respect of the Applicant) 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.
21.3 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.
Commonwealth’s Confidential Information
21.4 You agree to secure all of the Commonwealth’s Confidential Information (including Police History Information) against loss and/or unauthorised access, use, modification or disclosure.
21.5 If requested by us in writing, You agree to promptly arrange for your Personnel to give a written undertaking in a form acceptable to the relevant Government Agency relating to the use and non-disclosure of the Commonwealth’s Confidential Information (including Police History Information).
21.6 This clause shall survive termination of these Terms, however arising.
22.1 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 customers and potential customers.
23 Disclaimer & Limitation of Liability
23.1 To the maximum extent possible under Law, our total liability under these Terms arising out of or in connection with the Services and the PASS Solution and the Other Services, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the fees paid and/or payable to Pass Technology in the calendar year in which the loss occurred.
23.2 You acknowledge and agree that we (and the relevant Government Agency) make no representation or warranty of any kind in respect to the accuracy or completeness of any Police Check, Policy History Information; and we and the relevant Government Agency takes no responsibility or liability for any omission or error in an Agency Check.
23.3 A party shall not be liable u for any indirect, incidental, special consequential or exemplary damages which may be incurred by the other party, however caused. 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 it is as a result of our negligence or 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.
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:
(a) a breach of these Terms by You;
(b) any negligent or fraudulent act, error or omission by You or your Personnel;
(c) 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
(d) any claim by a third party against Pass Technology relating to a request by You to conduct an Agency Check.
except where the loss or damage is caused by the action or inaction of Pass Technology.
25.1 Unless otherwise stated in the Quote or clauses 25.2 or 25.3 applies, these Terms may be terminated by either party giving the other not less than ninety (90) days’ notice in writing.
25.2 Pass Technology may terminate these Terms (or reduce the scope of the Services) immediately on written notice to You:
(a) as a result of a termination or reduction of scope of Pass Technology’s agreement with the relevant Government Agency, including ACIC;
(b) if it is satisfied, on reasonable grounds, that You are unable or unwilling to comply with these Terms.
25.3 Either party may terminate these Terms immediately on written notice to the other if:
(a) the other is in material (or persistent or repeated) breach of these Terms which is incapable of being remedied or not remedied within 14 days after receiving written notice to rectify the breach;
(b) 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.
25.4 On termination of these Terms you shall forfeit all rights granted to you under these Terms (except those terms that survive termination) and you agree that you shall immediately stop using all parts of the PASS Solution and, without limiting any other obligation under these Terms, 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 We may withdraw, limit or suspend any Services or your access to the Software for any reasonable reason by giving you not less than seven (7) days’ notice in writing.
26.2 If Pass Technology or the relevant Government Agency believes, in their reasonable opinion, that there is a suspected or actual breach of Applicable Laws or these Terms, then the Parties agree to waive the notice requirements in paragraph 26.1.
27.1 We or the relevant Government Agency (our Partners) may conduct audits relevant to your compliance with these Terms. Audits may be conducted of:
(a) Data, records and other materials relevant to the Services, Agency Checks and the handling of Police History Information by You;
(b) your operational practices, and procedures as they relate to the Services, your use of the PASS Solution and your use and handling of Agency Information;
(c) your compliance with Privacy Laws and your privacy and confidentiality obligations under these Terms; and
(d) any other matter determined by us or our Partners to be relevant to the use of the PASS Solution, the Software, the Services or the performance by you of these Terms.
27.2 You must cooperate and promptly participate in any audits conducted by or on behalf of us or our Partners, including granting authorised Personnel access to your premises, data, records and other material (and facilities to copy, if required) relevant to your access / use of the PASS Solution, the Services and your use, storage and/or disclosure of Police History Information, and the subject matter of these Terms,
27.3 Subject to paragraph 28.4, We/our Partners shall provide you with at least three (3) Business Days’ prior notice of any audit to be undertaken pursuant to this clause 27 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.
27.4 If Pass Technology or the relevant Government Agency believes, in their reasonable opinion, that there is a suspected or actual breach of Applicable Laws, then the Parties agree to waive the notice requirements of three (3) days in paragraph 27.3.
27.5 Each Party must bear its own costs associated with any audit pursuant to this clause 27.
28 Dispute Resolution
28.1 The Parties agree to enter into good faith negotiations and use reasonable endeavours to resolve any potential or actual Dispute between them in a constructive and objective manner.
28.2 You agree to provide us or our nominee with any information or materials reasonably requested by us, in order to allow us to resolve any dispute between the Parties.
28.3 We agree that:
(a) the Party claiming that there is a dispute will send the other Party a notice setting out the nature of the dispute (‘Dispute Notice’);
(b) within 10 Business Days, the Parties will meet and will try to resolve the dispute through direct negotiation, including by referring the matter to persons who have the authority to intervene and direct some form of resolution.
(c) If a Dispute is not settled within ten (10) Business Days after the date of the Dispute Notice (or such later date as the parties may agree in writing), the Parties will, if mutually agreed, submit the Dispute to mediation administered by the IAMA in accordance with and subject to the Mediation Rules developed by IAMA. The mediator will be an independent person agreed between the parties or, failing agreement, a mediator will be appointed by the President of IAMA.
(d) Any mediation meetings and proceedings under this paragraph 28 must be held in Sydney, Australia.
29.1 The failure to insist upon strict performance of any of your obligations 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 and shall not relieve you from compliance with such obligations. 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 held to be invalid, unlawful or unenforceable, it 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.
29.4 You may only assign its rights under these terms and conditions with the prior written consent of us.
29.5 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.
29.6 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.
29.7 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.
29.8 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 4.4 (Terms of Licence), 7 (Your obligations), 10 (IP ownership & licence), 11 (Fees & Payment), 16 (Data & Privacy), 20 (3rd Party websites), 21 (Confidential Information), 22 (Publicity), 23 (Disclaimer & Limitation of Liability), 24 (Indemnity), 27 (Audits), 29 (General) and 30 (Definitions).
29.9 These Terms do not create a relationship of employment, trust, agency or partnership between the parties.
29.10 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.
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 in relation to an Applicant and any 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 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.
APP Entity has the same meaning given to the term in the Privacy Act 1988 (Cth).
Applicant means a person in relation to whom you or a company seeks a nationally co-ordinated criminal history check.
Applicant’s Informed Consent means the prescribed consent form that is completed, dated and signed (in physical or electronic format) 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.
Commonwealth means the Commonwealth of Australia and includes the ACIC.Commonwealth Confidential Information means information that:
(a) is Police History Information;
(b) is provided by, or originates from, the Commonwealth and is by its nature confidential, including the name or contact details of any staff member or security information relating to the provision of the Service; or
(c) such other information that ACIC or Pass Technology specifies, in writing, is confidential.
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:
v the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
v 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 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.
National Policing Information has the meaning given in the Australian Crime Commission Act 2002.
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.
Permitted Offshore Transfer means the permitted transfer of Personal Information or Police History Information to a location outside Australia, where the transfer is:
(a) necessary to provide an Applicant with access to the result of a nationally coordinated criminal history check in relation to the Applicant, where:
(i) the Applicant is located outside Australia; and
(ii) the Applicant has consented to the transfer or supply of their Personal Information or Police History Information to a location outside Australia; and/or
(b) for the purpose of routing that Personal Information or Police History Information through servers located outside Australia, where:
(i) the end recipient of that Personal Information or Police History Information is located within Australia; and
(ii) the Personal Information or Police History Information is retained or stored only on databases, servers or systems located within Australia; and/or
(c) for the purposes of retaining or storing the Personal Information or Police History Information on databases, services or systems located outside Australia where:
(i) the Applicant has consented to the retention or storage; and
(ii) ACIC has approved, in writing, Your IT environment for the retention or storage of Personal Information or Police History Information on databases, services or systems located outside Australia; and/or
(iii) for any other purpose for which the Applicant has consented.
Personal Information means such information or an opinion in relation to the subject matter of this Agreement (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 Laws).
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 Laws means:
(a) the Privacy Act 1988 (Cth).
(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.
Safeguards means practices that a professional organisation handling Personal Information would implement to appropriately protect that information, including those measures set out in Annexure A.
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:
(a) (variations or replacement) a document (including this Agreement) includes any variation or replacement of it;
(b) (singular includes plural) the singular includes the plural and vice versa;
(c) (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;
(d) (dollars) Australian dollars, dollars, A$ or $ is a reference to the lawful currency of Australia;
(e) (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;
(f) (reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(g) (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.
(h) (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;
(i) (time of day) time is a reference to Sydney, Australia time; and
(j) (reference to any thing) any thing (including any amount) is a reference to the whole and each part of it.
(k) (headings) Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement.
Annexure A – Protection of Personal Information and Police History Information Safeguards
You must implement the security management measures set out in this Annexure A to ensure against:
(a) misuse, interference, loss, unauthorised access, modification or disclosure of Applicant’s Personal Information;
(b) unauthorised access to and use of the Services;
(i) unauthorised access to Police History Information in the Services Support National Police Checking Service Support System (NSS); and
(ii) loss and unauthorised access, use, modification or disclosure of Police History Information stored outside of NSS.
3. Information Security Policy
3.1 You must develop, document and maintain an Information Security Policy (Policy) that clearly describes how You protect information, which is supported by Your senior management and be structured to include any legal framework relevant to the Policy and this Agreement.
3.2 The Policy must include adequate details on how it is enforced through physical, technical and administrative controls, including details on:
(i) the type or class of information that the Policy applies;
(ii) how Personal Information is held and information security roles and responsibilities relating to the Services;
(iii) security clearance requirements and its Personnel’s responsibilities;
(iv) configuration and change control;
(v) technical access controls and staff training;
(vi) networking and connections to other systems;
(vii) physical security (including media security); and
(viii) incident management.
4. Technical Access
Your IT environment must be secured in accordance with the Policy and should:
4.1 be protected by appropriately configured gateway environment (including firewalls);
4.2 include technical access controls protecting any Police Checks and Police History Information stored electronically outside of NSS, for example, restricted file system permissions; and
4.3 maintain a static IP address to avail web services (if applicable).
5. Technical Infrastructure
5.1 Workstations and server infrastructure involved in the storage of Police Checks, Policy History Information and relevant Personal Information should be secured in accordance with the Policy and should:
(i) run current and patched operating systems;
(ii) run current and patched software, including browsers (N-1 on browsers is acceptable providing patching is maintained);
(iii) have anti-virus software application installed up-to-date virus definition files; and
(iv) run application whitelisting software (desirable).
5.2 Administrative or privileged access to infrastructure is to be minimised and only used when an administrative function is required.
6. Digital Certificates
Digital certificates used in the connection to receipt of the Services must be managed securely and ensure:
6.1 certificates are not distributed beyond that required for connection;
6.2 certificates are only installed on Your corporate infrastructure (certificates must not be installed on home or personal computers); and
6.3 passwords relating to certificates are securely stored.
7. Password policy
System accounts/folders that are involved in the storage of Police Checks and Police History Information should be subject to a password policy that sets out:
7.1 no less than 10 character passwords including a minimum of one numerical and one upper case character;
7.2 password reset cycle no longer than 90 days;
7.3 users to select strong passwords (avoid dictionary words);
7.4 ensure unused accounts are disabled and removed; and
7.5 computers lock after 15 minutes of inactivity.
Your Personnel involved in storage of Police History Information and Personal Information must be provided with the information security awareness training related to:
8.1 their responsibilities as defined in the Policy;
8.2 what constitutes authorised access to information; and
8.3 their obligations with regard to reporting of information security issues or incidents.
9. Incident Management
Any information security issues or incidents must be reported immediately (and within 24 hours of becoming aware of the issue or incident) to Pass Technology. This includes, but is not limited to, loss or compromise of digital certificates or associated passwords.
These terms and conditions (“Agreement”) apply to the quote (the “Quote”) prepared by [PASS Software Limited] (registered in England with number ) (“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”.
- Terms of licence
- 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.
- 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.
- 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).
- 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:
- 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);
- 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;
- use the PASS Solution to facilitate any illegal activity;
- use the PASS Solution to provide a bureau or other service to third parties;
- to license, sell, rent, lease, transfer, assign, distribute, or otherwise make any part if the PASS Solution available to any third party;
- 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;
- 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
- to permit use of the PASS Solution otherwise in accordance with this Agreement.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Data and privacy
- 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.
- 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”).
- 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.
- 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).
- 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.
- 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.
- Support and services
- 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.
- 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.
- Supply of hardware
- 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.
- 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.
- Warranty and liability
- 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.
- 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.
- 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.
- Nothing in this Agreement excludes or limits our liability for:
- death or personal injury caused by our own negligence; or
- our own fraud or fraudulent misrepresentation.
- 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.
- Subject to clauses 6.4 and 6.5:
- we shall not be liable for any special, indirect, consequential or pure economic loss or for the loss or corruption of data or information;
- 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.
- 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.
- Confidential information
- 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:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- 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.
- 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.
- This clause shall survive termination of this Agreement, however arising.
- 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.
- 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:
- 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.
- Either party may terminate this Agreement immediately on written notice to the other if:
- 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;
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Provision of Services
- 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.
- 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.
- 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.
- 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).
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.
- Customer requirements
It is a condition of these terms and conditions that you report faults.
- Limitations and exclusions
- 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.
- 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.
- 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.
- 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).
- 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|