Terms & Conditions

Key Terms Summary

As is normal in commercial contracts, this Agreement limits the types and amounts of loss that you can recover from us. The relevant liability provisions in this Agreement are set out in clause 12 and include: 

  • a general cap on our liability to the amount of the fees you have paid us in each 12-month period 
  • the exclusion of our liability for indirect and consequential losses, as well as lost profits, revenue, interruption to your business and loss of your data 
  • no limits on our liability for death or personal injury where we are negligent, if we engage in fraud or fraudulent misrepresentation, or for any other liability that we are not permitted to exclude or limit by law 
  • no restriction on any rights or remedies you may have under legislation that cannot be excluded or limited. 

This Agreement also permits us to provide data about you, or data provided by you, to a third party in a form that may enable the third party to identify you (see clauses 5.4, 5.5, 8.2 and 10.5). We will obtain your consent for circumstances not covered by this Agreement. 

Examples of third parties that will receive this information include: 

  • KPMG: all customers undergo client onboarding and independence checks 
  • technology providers for integrating their services within Wiise to enable functionality for you  
  • our distribution and channel partners: your contact details (with your permission) 
  • our suppliers of digital marketing and analytics services to us. 

1. Introduction

1.1 This Agreement applies to the Services and Support Services provided by Wiise Software Pty Ltd (ABN 84 169 685 509) (we, us and our). 

1.2 By applying to use our Services, or using or receiving our Services or Support Services, you agree to be bound by this Agreement which sets out the terms and conditions that govern the provision of the Services and Support Services by us and the use of the Services by you. 

1.3 We may change the terms of this Agreement by notifying you accordingly with a notice period of at least 30 days, or such shorter period as we may reasonably require in the circumstances (for example in order to comply with a change in law or to address a change in Microsoft’s terms). If you do not agree to comply with such changes, then, unless those changes are required by law or to comply with applicable professional and ethical standards or codes, you may terminate this Agreement by notifying us accordingly in writing during that notice period, in which case clause 13.4 applies, and you must not access or use the Services after the notice period. If you continue to access or use the Services after the end of that notice period, you will be taken to have accepted such changes.

1.4 We may upgrade, maintain, or otherwise vary the Services and Support Services from time to time. If we are aware that a variation to the Services will cause you to lose any of Your Content or will materially reduce the functionality of the Services, we will notify you accordingly with a notice period of at least 30 days or such shorter period as we may reasonably require (for example in order to address a security issue or vulnerability in the Services). If you do not agree to a variation that will materially reduce the functionality of the Services, you may terminate this Agreement by notifying us accordingly in writing during that notice period, in which case clause 13.4 applies unless otherwise agreed to by us.

1.5 The definitions in Schedule 1 apply to this Agreement.

2. Microsoft

2.1 We have arrangements with Microsoft that permit us to build upon their Dynamics 365 Business Central product offering in providing the Services. That arrangement requires you to meet Microsoft’s eligibility requirements and have us to have you agree to the Microsoft Terms with Microsoft. You agree to be bound by and comply with the Microsoft Terms with Microsoft.

2.2 Microsoft may modify the Microsoft Terms at any time by notice to us, and if Microsoft does so we will notify you accordingly, or as otherwise set out in the Microsoft Terms. You must accept the revised Microsoft Terms prior to or at the submission of any subsequent order. If you do not wish to be bound by any such modifications, you may terminate this Agreement by written notice to us, in which case clause 13.4 applies.

3. Term of Agreement

3.1 This Agreement commences on the Commencement Date and, subject to clause 13, continues for the Services Period.

3.2 Unless you notify us 30 days prior to expiry of the then-current Service Period, the Agreement will automatically renew on expiry of the then-current Service Period as follows:

  1. where your Agreement is payable monthly in advance, on a month-to-month basis; or 
  2. where your Agreement is payable annually or more than annually in advance, for one-year periods. 
We will notify you 60 days prior to expiry of your then-current Services Period of any changes to the Agreement that will apply if the Agreement is renewed. 

3.3 Following the end of the Services Period, you will no longer have the right to use the Services.

4. Hosted Service

You agree and accept that the Services are managed and supported exclusively by us or on our behalf from our servers or those of an Assisting Party and that no back-end access to the Services is available to you. 

5. Rights Granted

5.1 Subject to any limitations set out in the Microsoft Terms, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right for your Authorised Users to access, configure (to the extent set out in the Sales Order) and use the Services ordered by you for the Services Period to manage your business but not that of an independent third party. You and your Authorised Users do not acquire any other right or interest of any kind in or to the Services. The Services are the property of us or our licensors. 

5.2 Some of your Authorised Users may be Full Authorised Users and others may be Limited Authorised Users. You must ensure that the number of Full Authorised Users and Limited Authorised Users that you authorise to use the Services (regardless of whether they are actively using the Services at any particular time) does not exceed the respective quantities purchased under this Agreement. A Full Authorised User or a Limited Authorised User will be counted for such purposes until you have permanently removed their authorisation to use the Services (whether because they leave your employment or otherwise). You must promptly report to us if you suspect that you have exceeded the number of permitted Full Authorised Users or Limited Authorised Users.

5.3 You may increase the number of Full Authorised Users and Limited Authorised Users by written notice to us and that increase will take effect promptly. If you are on a monthly contract, you may decrease the number of Full Authorised Users and Limited Authorised Users by written notice to us at least 30 days before the start of the month in which you require the decrease in users to begin. Failure to provide such notice will result in the number of Full Authorised Users and Limited Authorised Users not being revised.

5.4 To enable us to provide you and the Authorised Users with the Services, you grant us the right to use, process and transmit Your Content and Your Applications as contemplated under this Agreement. We may sublicence such rights to any Assisting Party.

5.5 If Your Applications include third party programs or you request us to make the Services interoperable with a third-party program or service: (i) we may allow providers of those third party programs or services to access the Services, including Your Content and Your Applications; and (ii) you permit us to access and use the third party programs or services (including any data contained in them), as required for the interoperation of such third party programs or services with the Services. We are not responsible for the third-party program or services, and to the maximum extent permitted by law, we will not be responsible for any use, copying, corruption, disclosure, modification or deletion of any program, service or data (including Your Content or Your Applications) resulting from any such access or for the interoperability of such third-party programs with the Services. You warrant that: you have obtained all necessary consents to (a) allow Your Content and Your Applications to be used in the manner contemplated by this Agreement; and (b) for us to access and use the third-party programs or services as required by clause 5.5(ii).

6. Use of the Services

6.1 You agree not to use, and must ensure your Authorised Users do not use, the Services for any purpose that may:

  1. menace or harass any person or cause damage or injury to any person or property;
  2. involve the publication of any material that:
    1. is misleading, deceptive, fraudulent, false, illegal, defamatory, inflammatory or libellous;
    2. contains viruses, bots, worms, scripting exploits or other similar materials;
    3. you do not have the right to submit; or
    4. encourages illegal or tortious conduct or that is otherwise inappropriate;
  3. breach privacy rights;
  4. constitute unsolicited bulk e-mail, junk mail, spam or chain letters;
  5. constitute an infringement of our or anyone else’s rights, including Intellectual Property Rights, privacy rights or other proprietary rights; or
  6. otherwise breach applicable laws, ordinances, or regulations, or give rise to any civil or criminal liability for you, us, or any Assisting Party.
6.2 You also agree not to:
  1. modify, adapt, or make a derivative work based on, the Services;
  2. create unauthorised links to the Services or frame or mirror the Services;
  3. reverse engineer, decompile or disassemble the Services, except to the extent expressly permitted by applicable law despite this limitation;
  4. distribute, sublicence, rent, lease or lend any materials provided as part of the Services to any third party without our prior written consent. For clarity, this does not prevent you from granting access to the Services or the output of the Services to your Authorised Users;
  5. attempt to access areas of the Services or our or a third party’s networks on which the Services are hosted to which you have not been given access;
  6. modify, disable, or compromise the integrity or performance of the Services, or related systems, networks or data, including but not limited to probing, scanning or testing the vulnerability of any system or network that hosts the Services;
  7. overwhelm or attempt to overwhelm the infrastructure over which the Services are provided;
  8. take any action that is likely to adversely affect the use or functionality of the Services; or
  9. access the Services by any means other than the supported interfaces.

6.3 You will not provide access to the Services to any person other than your Authorised Users.
 
6.4 You agree to take appropriate steps to secure your systems and your Login Credentials to prevent unauthorised users from gaining access to the Services, including through, or using those Login Credentials, and you agree that:
  1. we will treat anyone who uses your Login Credentials as you and you must ensure that all such persons (including your Authorised Users) comply with this Agreement; 
  2. you will be liable for the acts and omissions of such persons (including your Authorised Users) in using the Services as if they were your own, including any loss, damage or claim caused by their conduct; and 
  3. we will not be responsible for you sharing, or any other misuse of, Login Credentials and we will hold you responsible for the activities of a person using your Login Credentials (whether or not authorised by you), except where due to our fault or that of an Assisting Party.   
You will notify us immediately if you suspect that someone is using your Login Credentials in an inappropriate manner. 
 
6.5 You must defend, indemnify, and hold us harmless from any claim from a third party arising due to:
  1. any customisations to the Services in breach of clause 6.2, or other use infringing any proprietary right, including an Intellectual Property Right, of a third party if such claim would have been avoided by the use of the Services in accordance with this Agreement; 
  2. Your Content or Your Applications (including any claim that they infringe anyone else’s rights, including Intellectual Property Rights, privacy rights or other proprietary rights); or
  3. Your breach of a warranty in clause 5.5. 

7. Compliance

7.1 You will comply, and ensure that your Authorised Users comply, with all of our security, technology and risk management policies, rules and guidelines relating to the use of the Services which we provide to you from time to time, including any end user terms and conditions provided in connection with the use of the Services. We will provide you with a notice period of at least 30 days, or such shorter period as we may reasonably require in the circumstances (for example to address a security or risk issue), of any new policies, rules and guidelines or any changes to existing policies, rules, and guidelines. If you do not agree to these, then unless those changes are required by law or to comply with applicable professional and ethical standards or codes, you may terminate this Agreement in accordance with clause 13.4. You further agree to immediately notify us if you become aware of any event or action which might reasonably impair the Services’ security, such as improper access to the password of an Authorised User or a potential or actual breach of clause 6.4 by you.

7.2 You are responsible for:

  1. the management, conduct and operation of your business, interests and affairs;
  2. compliance with your legal and regulatory obligations, including relating to your use of the Services;
  3. deciding how you use the Services and the outcomes of the Services; and
  4. the delivery, achievement or realisation of any benefits directly or indirectly related to the Services.

7.3 We shall rely on the truth, accuracy and completeness of any information provided or made available to us by you or on your behalf (including by Authorised Users) in connection with the Services and Support Services without independently verifying it. You must notify us in writing of any changes to any such information that may affect our Services and Support Services.

7.4 Any advice, recommendation, information, or deliverable provided by us to you is for your sole internal use and benefit. Unless required by law to do so, you shall not provide it or make it available to any third party, other than your Authorised Users.

7.5 You are not permitted to use our names, logos, or trademarks in any marketing, promotional material, or other publication without our prior written consent. You will not register, apply for, or take any other action to acquire any right, title, or interest with respect to any proprietary right, including any of our Intellectual Property Rights, or that of any of our Member Firms or other Assisting Parties in any jurisdiction, whether or not we or any of our Member Firms or other Assisting Parties have taken any action to effect, perfect, register or enforce such rights in such jurisdictions.

7.6 You are required to keep records (including proof of purchase) relating to the Services and Support Services under this Agreement. On at least 14 days’ written notice, during normal business hours and in a manner that does not interfere unreasonably with your operations, we may audit or verify your use of the Services to assess whether your use is in accordance with this Agreement including, for example, whether you have enough Full Authorised Users and Limited Authorised Users for the Services. Upon request, you will provide reasonable co-operation and promptly give us such access and information that we reasonably request to assist us to make this assessment.

8. Content

8.1 As between us and you, you accept sole responsibility for:

  1. all of Your Content uploaded onto the Services by you or on your behalf (including by Authorised Users), including the accuracy of Your Content; and
  2. the results obtained from the processing of Your Content by the Services, where the results depend upon the accuracy of Your Content.

8.2 You consent to the use and sharing (including across national borders) of Your Content for any legitimate purpose relating to our delivery of the Services and Support Services to you. We may disclose Your Content on the Services to the extent required to do so by applicable laws, legal process, professional standards, and obligations, regulatory authority, or disciplinary body.

8.3 You warrant that our or any Assisting Party’s use of any of Your Content and Your Applications while delivering the Services and Support Services will not infringe the rights, including Intellectual Property Rights, privacy rights or any other proprietary rights of any third party.

9. Fees

9.1 Where you have purchased the Services and any Support Services through one of our resellers, you must pay Fees for your use of the Services and receipt of Support Services in accordance with the arrangements agreed with your reseller.

9.2 Where you purchase the Services and any Support Services directly from us:

  1. we will charge you for the Services and any Support Services in accordance with the Sales Order and you agree to pay the Fees for your use of the Services and receipt of any Support Services as set out in the relevant Sales Order, including from any start date specified in the Sales Order and in accordance with the payment terms set out therein;
  2. any underpayment of the Fees, whether revealed by an audit or verification process, any self-reporting by you, or otherwise, must be paid by you within 30 days of receipt of an invoice from us in relation to that underpayment;
  3. the Subscription Fees will be charged by us on a per user basis and will be increased for any additional Full Authorised Users or Limited Authorised Users;
  4. you agree to pay any additional Fees that may become payable by you for you to access and use new features and functionality (for example, payroll) that we may make available (Functionality Fees). These Functionality Fees are not included in the standard Subscription Fees. Any such Functionality Fees that may become payable will be notified to you in advance, and if the new features and functionality is accepted by you, the Functionality Fees will be charged to you as an additional Functionality Fee in accordance with the notified payment terms for the relevant feature or functionality;
  5. the Fees are subject to change. Unless otherwise set out in the Sales Order, we will provide 60 days’ notice prior to any Fee change. Where you do not agree to those changes, you may terminate this Agreement in accordance with clause 13.4; and
  6. except in cases of termination (in which case clause 14.3 applies), where Fees are calculated by reference to a period of time (e.g. a month), and the relevant Services or Support Services are not supplied for the full period of time, the relevant Fees will be prorated to reflect the period for which the Services or Support Services have been supplied.

10. Handling Information

10.1 You agree that we may collect, hold, use and disclose your Confidential Information and Personal Information as set out in our Privacy Policy and in accordance with this Agreement.

10.2 You warrant that you have provided all necessary notifications for, and obtained all necessary consents to, the transfer, access, disclosure, deletion, updating and use of any Personal Information or Confidential Information forming part of Your Content by us as contemplated by this Agreement and our Privacy Policy or as directed from time-to-time. This includes but is not limited to the linking of the Services or Support Services with any other Microsoft account or service and extends to all necessary notifications or consents for all Authorised Users.

10.3 Unless already provided for in this Agreement, our Privacy Policy or permitted by law, each party must comply with applicable Privacy Laws in respect of Personal Information and keep confidential, and refrain from disclosing the Confidential Information and Personal Information of the other party. Each party will take reasonable security measures to protect such information from unauthorised use, access, disclosure, alteration, or destruction. Such measures will include access controls, encryption and any other means that are required to comply with applicable law.

10.4 The Services may include the property of Licensors. Licensors retain all right, title and interest, including all Intellectual Property Rights, in and to their respective property included in the Services. Licensors’ property included in the Services, their underlying technology, architecture, and source code, and performance information relating to the Services, are Confidential Information of Licensors notwithstanding the absence of any marking or further designation. You must handle the Confidential Information of Licensors in accordance with clause 10.3.

10.5 We may:

  1. extract and compile statistical and other commercial information from Your Content, as well as from data related to the performance, operation and use of the Services or Use data from the Services (including aggregated and de-identified information using information and materials used or developed in the performance of the Services) for security and operations management, to support data driven functionality, to create statistical analyses, for research and development purposes, benchmarking and for internal or external quality assurance, business development, service and product improvement. For the purposes of this paragraph, “aggregated and de-identified” means that your identity, or information relating specifically to you, cannot reasonably be ascertained;
  2. refer to, use and disclose knowledge, experience and skills of general application gained through the provision of the Services and Support Services;
  3. use, and disclose to Microsoft any technical information that we derive from providing the Services and Support Services related to our technology for problem resolution, troubleshooting, functionality enhancements and fixes, or for our knowledge base;
  4. refer to and use your name, contact details, logo and a description of the Services and Support Services for marketing purposes; and
  5. agree with you other uses of your Personal Information and Confidential Information from time to time.

10.6 Unless already provided for in this Agreement (including clauses 5.4, 5.5, 8.2 and 10.5), our Privacy Policy or permitted by law, we will obtain your consent before providing your Personal Information or Confidential Information to a third party in a form that is not aggregated and de-identified.

10.7 Any breach of this clause 10 by you will be deemed a material breach of this Agreement that cannot be remedied.

10.8 Some features in the Services may enable the collection of data from Authorised Users that access or use the Services. If you use these features, you must comply with applicable law, including getting any required consents, and maintaining a prominent privacy policy that accurately informs users about how you use, collect, and share that data.

11. Data and Document Retention

You acknowledge that there are inherent risks associated with internet-based information transmission and online service delivery which are outside our reasonable control. For example, the Services may be affected by cyber-attacks or by third parties who provide or maintain aspects of the Services. If this occurs, we will make commercially reasonable efforts to make the Services available to you and assist you to access and recover Your Content. However, we cannot guarantee that your access to the Services or Your Content will always be secure, uninterrupted or error free. To the maximum extent permitted by law, we will not be liable for any loss (including loss of any of Your Content) which is outside our reasonable control.

12. Liability

12.1 Nothing in this Agreement shall operate so as to exclude or limit liability of either party to the other for:

  1. death or personal injury arising out of negligence; 
  2. fraud or fraudulent misrepresentation by it or its employees; or 
  3. any other liability that cannot be excluded or limited by law.

12.2 To the maximum extent permitted by law, the maximum aggregate liability of us or any Assisting Party in connection with this Agreement (whether in contract or tort (including without limitation negligence), in equity, under statute or on any other basis) for all claims arising in a Liability Period shall be limited to 100% of the total Fees actually paid by you to us or (if you have purchased the Services or Support Services through one of our resellers) to your reseller in the relevant Liability Period. Where a cause of action arises in a Liability Period and continues across subsequent Liability Periods and/or continues after the termination of this Agreement, then the cause of action shall be deemed to have arisen only in the Liability Period in which such cause of action first arose.

12.3 To the maximum extent permitted by law, whatever the legal basis for the claim, neither us nor any Assisting Party will be liable for any indirect, consequential, special or incidental damages, or damages for lost profits, revenues, business interruption or loss of data arising in connection with this Agreement, whether in contract or tort (including without limitation negligence), in equity, under statute or on any other basis, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable.

12.4 The liability of a party (and, in our case, any Assisting Party) for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the other party caused or contributed to that loss or damage.

12.5 Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

12.6 If a Non-Excludable Provision applies and we are able to limit your remedy for a breach of that Non-Excludable Provision, then our liability for breach of that Non-Excludable Provision is limited to one or more of the following at our option:

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

12.7 You agree not to bring any claim (including in negligence) against any Member Firms or any of our Personnel in connection with the Services or Support Services. You agree that each Member Firm and each of our Personnel may rely on this clause 12.7 as if they were a party to this Agreement, and we enter into this Agreement on their behalf so that they may do so. You acknowledge that damages are unlikely to be an adequate remedy for your breach of this clause 12.7, and we may enforce this clause 12.7 on behalf of other Member Firms and our Personnel.

12.8 If we engage a Member Firm as an Assisting Party, where any scheme approved under professional standards legislation applies to the Services or Support Services performed by that Member Firm, the Member Firm’s liability in relation to the Services or Support Services to which the scheme applies is limited in accordance with the scheme.

12.9 Each Assisting Party is intended to have the benefit of this clause 12 as if they were a party to this Agreement, and we enter into this Agreement on their behalf so that they may do so.

12.10 To the maximum extent permitted by law, you acknowledge that:

  1. we are providing you with access to and use of the Services on an “as is” basis and all express or implied representations, guarantees, warranties or other terms and conditions of any kind relating to this Agreement not expressly stated in this Agreement are excluded from this Agreement;
  2. the Services are neither fault tolerant nor free from errors, conflicts, bugs or interruptions; and
  3. where you engage a third party to perform Third Party Services, we do not accept any liability or responsibility in relation to those Third Party Services.

13. Termination and Suspension

13.1 Either party may terminate this Agreement immediately in whole or in part by written notice to the other:

  1. if the other party commits a material breach of this Agreement and, if the breach is capable of being remedied, does not remedy such breach within 14 days of the date on which it receives written notice identifying the breach and requesting that it be remedied;
  2. if the other party is subject to an Insolvency Event; or
  3. if the Services or Support Services are suspended for more than 21 days.

For the purposes of this clause, Microsoft’s termination of the Microsoft Terms for your breach of the Microsoft Terms shall constitute a material breach incapable of remedy.  

13.2 We may terminate this Agreement in whole or in part:

  1. for convenience upon at least six months prior written notice; or
  2. by giving you written notice if, in our reasonable opinion, the provision of any Services or Support Services by us:
    1. does or would breach or is inconsistent with any applicable law, rule, regulation or professional or ethical standards or codes or internal directions or policies (including any requirements relating to independence);
    2. has the potential to bring our reputation into disrepute; or
    3. may expose individuals providing the Services or Support Services to unreasonable physical or personal risk,

iii. by notifying you accordingly with a notice period of at least 30 days, or such shorter period as we may reasonably require.

13.3 Notwithstanding our rights to terminate this agreement in clauses 13.1 and 13.2, we may suspend the provision of the Services or Support Services immediately in whole or in part by written notice to you:

  1. where any Fees are not paid to us or (if you have purchased the Services or Support Services through one of our resellers) to your reseller by the due date, and you fail to pay such amounts within 7 days after we or that reseller notifies you of such failure, until such Fees are paid;
  2. where, after a reasonable request, you do not provide or make available to us information or personnel necessary for us to perform the Services or Support Services, until the information is provided or the personnel are made available;
  3. if you commit a material breach of this Agreement that is capable of being remedied, and you fail to remedy such breach within 7 days of the date on which you receive written notice identifying the breach and requesting that it be remedied, until such time as that breach is remedied; or
  4. if Microsoft suspends your agreement with Microsoft under the Microsoft Terms.

13.4 You may terminate this Agreement by written notice to us at least 30 days before the start of a month, in which case this Agreement will terminate immediately before the start of that month.

14. End of Services

14.1 At the end of the Services Period, you no longer have the right to access or use the Services. However, at your request, and for a period of up to 30 days after the end of the applicable Services Period, we will make Your Content and Your Applications available to you only for retrieval purposes for a fee of $2,000. If we terminate this Agreement pursuant to clause 13.2 or you terminate this Agreement pursuant to clause 13.1i, this fee shall not be payable by you.

14.2 At the end of the 30-day period described in clause 14.1, and except as may be required by law, we may delete or otherwise render inaccessible any of Your Content and Your Applications.

14.3 Following termination of this Agreement:

  1. you must pay within 30 days of such termination:
    1. except for any amounts to which paragraph (ii) applies, all amounts that have accrued prior to such termination and remain unpaid; and
    2. in respect of a termination by us in accordance with clause 13.1i or iii, or you under clause 13.4, an amount equal to the Fees that would have been payable for the balance of any Minimum Term, unless the payment of such amount is waived in whole or in part by Wiise in its sole discretion; and

ii. where we terminate under 13.2:

    1. where you pay the Fees monthly in advance, your obligation to pay the Fees shall end at the end of the month in which the termination takes effect; and
    2. where you pay the Fees other than monthly in advance, we will provide you with a pro-rata refund of any Fees that have been paid for Services which have not been delivered as at the effective date of termination.

15. Notices

All notices, consents, approvals, demands, and other instruments required or permitted to be served under this Agreement must, unless otherwise expressly provided in this Agreement, be in writing, signed by or on behalf of the party serving the same or by that party’s solicitor and may be served upon the party at the postal or email address provided for that party in this Agreement.

16. Goods and Services Tax

16.1 GST means goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

16.2 Unless otherwise stated, all fees and charges are exclusive of GST. In addition to the amount payable, you must pay us any GST applicable to any Taxable Supplies we make, and we will provide you with tax invoices for those supplies.

17. General

17.1 Entire Agreement

  1. Nothing in this Agreement limits any liability that you or we may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this Agreement, where such liability cannot be lawfully excluded.
  2. Subject to paragraph i, this Agreement constitutes the sole and entire agreement between the parties and will supersede all previous communications (either oral or written) between the parties with respect to the subject matter of this Agreement. Except as otherwise expressly stated in this Agreement, including in clause 1.3, no agreement or understanding varying or extending this Agreement will be binding on either party unless agreed by the parties in writing.

17.2 Governing law and jurisdiction

This Agreement is governed by, and is to be construed in accordance with, the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.

17.3 Dispute Resolution

  1. Subject to clause 17.4, if a Dispute arises:
    1. the party raising the Dispute must provide a Dispute Notice to the other party; and
    2. the parties must engage in confidential senior level negotiations with a view to resolving the Dispute.
  2. If a Dispute has not been resolved within 14 days after the Dispute Notice is given, the parties agree to refer the Dispute to mediation in accordance with the Resolution Institute Mediation Rules.
  3. If a Dispute has not been resolved within 28 days after the Dispute Notice is given, the Dispute must be referred to arbitration conducted in English, with the seat of arbitration to be Sydney, Australia and in accordance with the ACICA Arbitration Rules. The number of arbitrators will be one if the amount in Dispute is under $10 million or three if the amount in Dispute is $10 million or more.

17.4 No court proceedings may be commenced in relation to a Dispute other than in accordance with section 34A of the Commercial Arbitration Act 2010 (NSW) or to seek Urgent Relief.

17.5 Relationship of the parties

Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee, or representative of any other party or to create any trust relationship between them.

17.6 Force Majeure Event

Neither party (the Excused Party) will be liable for any failure to perform its obligations (other than an obligation to pay) under this Agreement to the extent that performance is delayed, prevented, restricted, or interfered with for any reason beyond the reasonable control of that party, including where we are the Excused Party your failure to comply with your obligations under this Agreement.

17.7 Severance

If any part of this Agreement is, or becomes, unenforceable, illegal, or invalid for any reason, the relevant part is to be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such part must be severed from this Agreement, without affecting the enforceability, legality or validity of any other provision of this Agreement.

17.8 Waiver

A power, remedy or right arising from any provision of this Agreement can only be waived, qualified, restricted, modified or amended specifically in writing by the party with that power, remedy or right.

17.9 Survival

Any clauses which are intended or capable of having effect after the expiration or termination of this Agreement are continuing obligations and those clauses survive this Agreement’s rescission, termination, completion, or expiry.

17.10 Modern Slavery

As an Associated Entity of KPMG: 

  1. we will perform the Services in accordance with KPMG’s Human Rights Policy, available at www.kpmg.com.au; 
  2. KPMG is undertaking an ongoing process to identify Modern Slavery risks in KPMG’s operations and supply chain; and 
  3. we may assist KPMG to report on the Modern Slavery risks in KPMG’s operations and supply chain in KPMG’s annual modern slavery statement, in accordance with KPMG’s obligations under the Modern Slavery Act. 
17.11 Referral Fees

The supply of the Services may involve us paying or receiving a percentage-based referral fee or value-added commission.

Schedule 1: Glossary

"Agreement” means these terms and conditions, including any schedules.

“Associated Entity” has the meaning given to it in section 50AAA of the Corporations Act 2001 (Cth).

“Assisting Party” means any party that is in any way involved in or associated with the provision of the Services, including a Member Firm, other than the parties to this Agreement.

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Authorised Users” means your employees, contractors or officers that are Full Authorised Users or Limited Authorised Users and any external advisors, bankers, accountants or IT support providers that require limited access to the Services solely for the purposes of them advising you.

“Business Day” means a day on which banks are open for business excluding Saturdays, Sundays, bank holidays or public holidays in Sydney.

“Commencement Date” means the date on which you are first given access to use the Services under this Agreement.

“Confidential Information” means (whether or not in material form and whether or not disclosed before or after the date this Agreement commences) any information of whatever kind disclosed or revealed by a party to the other party under or in relation to this Agreement that:

  1. is by its nature confidential;
  2. is designated by the disclosing party as confidential; or
  3. the receiving party knows or reasonably ought to know is confidential,

but does not include information that:

  1. is, or becomes, publicly available without a breach of this Agreement; 
  2. was lawfully known to the receiving party without an obligation to keep it confidential; 
  3. is received from another source who can disclose it lawfully and without an obligation to keep it confidential; or 
  4. is independently developed by the receiving party.  

“Dispute” means a dispute in connection with this Agreement or the Services or Support Services.

“Dispute Notice” means a notice of a Dispute that contains sufficient detail to enable the Dispute to be considered.

“Fees” means the Subscription Fees and any Functionality Fees and Support Fees.

“Full Authorised Users” means those Authorised Users that have full rights to access and use the Services in the manner determined by us from time to time as constituting full access 

“Functionality Fees” has the meaning used in clause 9.2(iv) of this Agreement.  

“Insolvency Event” means the occurrence of any one or more of the following events in relation to a party: 

  1. an order is made or an effective resolution is passed for winding up or dissolution without winding up (otherwise than for the purposes of reconstruction or amalgamation) of that party and the order or resolution remains in effect for a continuous period of 7 Business Days;
  2. a receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or substantial part of the undertaking and property of that party and the appointment remains in effect for a continuous period of 7 Business Days;
  3. a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of that party;
  4. that party is unable to pay its debts as they fall due; or
  5. that party becomes insolvent or is deemed to become insolvent under any applicable Law.

“Intellectual Property Rights” means all intellectual property or other proprietary rights throughout the world, whether under statute or common law or equity, now or hereafter in force or recognised, including but not limited to: (i) copyrights, trade secrets, trade-marks, patents, inventions, designs, logos and trade dress, moral rights, mask works, publicity rights, privacy rights and any other intellectual property or proprietary rights (whether registered or unregistered); and (ii) any application or right to apply for any of the rights referred to in paragraph (i), and any and all renewals, extensions and restorations of these. 

“KPMG” means the Member Firm that is the Australian Partnership of KPMG (ABN 51 194 660 183).  

“Liability Period” means each successive 12 month period commencing on the Commencement Date.

“Liability Period” means each successive 12 month period commencing on the Commencement Date. 

“Licensor” means third party licensors. 

“Limited Authorised Users” means those Authorised Users that have limited rights to access and use the Services in the manner determined by us from time to time as constituting limited access. 

“Login Credentials” means your or your Authorised Users’ usernames and passwords or other credentials needed in order to access the Services. 

“Member Firm” means an entity (whether or not incorporated) which is a member or an affiliate of a member of the KPMG-branded network of independent member firms, but excluding us. 

“Microsoft” means Microsoft Corporation and/or any of its affiliates. 

“Microsoft Terms” means the terms of agreement between you and Microsoft granting you rights to Microsoft’s Dynamics 365 Business Central product, and the associated licence terms that govern your use of the Microsoft product, as determined by Microsoft, as set out in Schedule 2 and as Microsoft may decide to modify from time to time.  

“Minimum Term” means any minimum term for the Services and/or Support Services specified in the Sales Order. 

“Modern Slavery” means conduct defined as “modern slavery” in the Modern Slavery Act. 

“Modern Slavery Act” means the Modern Slavery Act 2018 (Cth). 

“Non-Excludable Provision” means any guarantee, warranty, term, or condition that is implied or imposed in relation to this Agreement under the Australian Consumer Law or any other applicable legislation that cannot be excluded. 

“Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth). 

“Personnel” means the partners, officers, employees, contractors, secondees and agents of us and our Assisting Parties. 

“Privacy Laws” means the Privacy Act 1988 (Cth) and any other Australian law, or binding industry code or policy relating to the handling of Personal Information. 

“Privacy Policy” means the privacy policy available at https://wiise.com. 

“Sales Order” means the order document signed by us and you for the Services and any Support Services. 

“Services” means the Wiise subscription-based cloud computing business service. 

“Services Period” means the period from the Commencement Date and then as set out in the Sales Order, unless extended in accordance with clause 3.2 or terminated earlier in accordance with this Agreement. 

“Subscription Fee” means those subscription fees payable for the Services in accordance with this Agreement. 

“Support Fee” means those fees payable for the Support Services in accordance with this Agreement. 

 “Support Services” means those support services provided under this Agreement, including under clause 14.1, but does not include any support services provided by us under an agreement that is distinct and separate to this Agreement. 

 “Taxable Supplies” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). 

Third Party Services” means services performed by a third party, that is not Us or an Assisting Party, to implement or perform other services for you in relation to the Services, including to the extent set out in the Sales Order the configuration of the Services.  

“Urgent Relief” means urgent injunctive, interlocutory, or declaratory relief in respect of a Dispute or the enforcement of a payment due under this Agreement. 

“Use” means collect, use, access, modify, transfer, and only in an aggregated and de-identified form, sublicence and disclose. 

“We, us (or derivatives)” has the meaning given to that term in clause 1.1, except in clause 10.5, the last sentence of clause 11 and clauses 12.2, 12.3, 12.6 and 13.2(b) where it also includes Member Firms. 

you” means the relevant legal entity or person that uses the Services, as identified in the online application form completed by that entity or person (and “your” shall be construed accordingly).

“Your Applications” means any software programs that are uploaded to the Services by you or on your behalf, or by your Authorised Users. 

 “Your Content” means your text, files, software, images, graphics, illustrations, information, data, audio, video, photographs and all data, documents, materials, or other information provided to us or entered into the Services by you, or on your behalf, or at your request, or by your Authorised Users. 

Schedule 2: Microsoft Terms

Microsoft requires that you accept the terms of the following Microsoft agreements, as Microsoft may amend from time to time as set out at the following link: 

Microsoft Customer Agreement