Licence Agreement

SOFTWARE LICENCE

TERMS AND CONDITIONS

1.1 In this agreement the following words and expressions have the following meanings:

‘acceptance date’ means the date upon which the software is accepted as provided by clause 14;

‘authorised individual’ means an individual permitted by the customer to utilise the software;

‘cloud hosting service’ means the innovative computing technologies that allow an unlimited number of machines to act as one system;

‘commencement date’ means the date so specified in the order form;

‘confidential information’ includes information that is by its nature confidential, is designated as confidential or a party knows or ought reasonably to have known it is confidential, but does not include information which is in the public domain or is or comes into a party’s possession independently of these terms or is independently developed by a party. For the avoidance of doubt, confidential information includes personal information input by the customer into the software;

‘customer’ means the school to which the software is provided, or as otherwise specified in the order form;

‘customer data’ means any kind of data which is provided by the customer to Sentral or that is otherwise generated, held or stored by Sentral in the course of carrying out its obligations and providing the software;

‘documentation’ means any of the documents supplied by Sentral to the customer with the software and which contain technical information relating to the software;

‘early termination fee’ means the fee payable by the customer to Sentral, which represents a genuine and reasonable estimate of the loss incurred by Sentral due to the early termination of the licence, calculated by reference to the below:

                100% of the licence fee for remaining months in the initial year of the term, plus
                80% of the licence fee for remaining months of the second year of the term, plus
                50% of the licence fee for remaining months in the balance of the term.

‘force majeure event’ means circumstances which arise beyond Sentral’s control, making delivery of the software to the customer impossible for a certain period of time;

‘intellectual property rights’ means all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, rights in confidential information (including trade secrets), registered designs, circuit layout rights and all other rights generally falling within the scope of the term intellectual property rights;

‘licence’ means the licence of software granted pursuant to this agreement;

‘licence fee’ means the amount so specified in the order form;

‘order form’ means the completed form provided by a customer specifying the software to which the licence applies, licence fees and other relevant information;

‘personal information’ means information or an opinion by which an individual is identifiable or reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not;

‘Sentral’ means Sentral Pty Ltd ACN 085 316 310;

‘software’ means the computer program, and related documentation specified in the order form;

‘support fees’ means the amount so specified in the order form;

‘support services’ means the services specified as being provided in the order form;

‘term’ means the term of the licence specified in the order form;

1.2 Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this agreement.

2.1         Sentral hereby grants to the customer a non-exclusive, non-transferable licence to use the software and the documentation on and subject to the terms and conditions of this agreement.

2.2       This licence extends to the delivery of products and services to customers via a cloud hosting service. Where the customer accesses the software and/or related documentation via the cloud hosting service, this term will apply.

3.1        This agreement and the licence hereby granted commences on the commencement date.

3.2       Subject to the terms and conditions of this agreement, the licence shall continue for the term of the licence.

3.3       Upon expiration of the term of the licence, unless either party provides at least 30 days written notice that it intends to terminate or vary the terms of the licence and, in the case of a variation, the other party has provided written notice that it does not accept the varied terms, the licence shall be automatically renewed for a 12-month period, at the conclusion of every additional 12-month term.

3.3.1 Unless it provides notice to the contrary, a party is deemed to have accepted any changes to the terms upon renewal of the licence.

4.1       Sentral may on the commencement date or as otherwise agreed deliver a copy of the documentation to the customer. The documentation may also be available to download in a digital online form.

4.2       Sentral may provide the customer from time to time with copies of any amendments to the documentation which may be issued by Sentral during the term of the licence.

4.3       The customer will not copy the documentation except where necessary to enable proper use of the software in the manner reasonably contemplated by the parties.

5.1        Sentral may configure its system to allow for effective access to the cloud hosting service, and may provide any internal technical support it deems necessary.

5.2        If a customer’s use of the software causes undue damage, loss, or impairs or threatens to impair the continued proper functioning of Sentral’s equipment or software, the customer’s licence to use the software may be suspended without notice.

5.3        The customer acknowledges that Sentral may suspend access to the software at any time for the purpose of conducting maintenance or repairs to the software, so long as Sentral provides the customer with reasonable notice and attempts to schedule maintenance at a time which has minimal impact on the customer’s access to the software.

5.4         The customer acknowledges that there may be some circumstances out of Sentral’s control where it will be unable to provide the software, and will not hold Sentral responsible for any delay or disruption in this circumstance.

5.5          If Sentral remains unable to provide the software for a period in excess of eighteen hours on a business day (or consecutive business days), Sentral will grant the customer a fee credit which reflects the proportion of the fees attributable to the time the software remained unavailable.

6.1      Sentral warrants that if requested by the customer, it will make customer data and other related documentation available for inspection by the customer or the customer’s auditors, on the following conditions:

6.1.1   it will be provided without exception and free of charge; and

6.1.2. the customer data is provided to the customer in whatever format it requests, regardless of whether it is in a different format as is otherwise provided by the software, on the condition that such a request is treated as an additional service.

6.2      Sentral warrants that it will ensure that all customer data stored in the cloud hosting service is appropriately backed-up, and will take all necessary steps to ensure that the customer data is protected against outside interference or loss.

6.3       If Sentral becomes aware of any actual, suspected or potential breach as outlined in clause 6.2, it must immediately notify the customer of such breach and take all reasonable steps necessary to mitigate the consequences of the suspected or actual breach.

6.4.      All customer data is and remains the property of the customer, even if in the possession of Sentral, and both parties must ensure that it remains at all times free from any lien, charge or other encumbrance. The customer also warrants that:

6.4.1   it has sole responsibility for the accuracy, quality, integrity, reliability and appropriateness of all customer data uploaded to, processed using or generated through the software; and

6.4.2   Sentral will have no liability in relation to any defect, error, inaccuracy or other such failure in the customer data.

7.1        The customer shall not collect customer data that comprises personal information from an individual unless the individual has been notified of the reasons for its collection, including its potential disclosure to, and use by, Sentral for the primary purpose of managing, analysing and reporting on the personal information to the customer.

7.2        The customer warrants that it is responsible for the maintenance of all customer data that comprises personal information and providing access to that information to individuals in accordance with all relevant privacy laws.

8.1         As consideration for the licence and support services, the customer shall pay the licence fee and the support fees to Sentral on the dates and/or at the intervals specified in the order form.

8.2        Unless otherwise specified, the licence fee and the support fees are exclusive of all taxes, duties and surcharges payable in respect of the software and the support services.

8.3        If any payment is not made within 14 days of any due date for payment Sentral shall be entitled, at its discretion, to:

8.3.1      suspend its remaining obligations under this agreement until the payment (and any interest due thereon) has been paid; and/or

8.3.2     terminate the licence; and/or

8.3.3     re-possess the software; and/or

83.4     cease to provide the support services.

9.1         Unless otherwise expressly stated, the licence fees set out in the order form do not include Goods and Services Tax (“GST”) and:

9.1.1   the customer shall, in addition to the licence fees, pay to Sentral an amount equal to the GST payable by Sentral for any taxable supply made by Sentral to the customer pursuant to this agreement;

9.1.2   Sentral will furnish the customer with a GST tax invoice complying with the regulations in force from time to time, in respect of each taxable supply upon which GST is charged pursuant to this agreement; and

9.1.3 the customer shall pay the GST to Sentral on the same due dates as the dates for payment of any consideration payable pursuant to this agreement or if no such dates are specified, upon receipt of a GST tax invoice from Sentral.

10.1          The customer acknowledges that Sentral is the owner or the licensed distributor of the owner of the software who retains ownership of the software whether in its original form or as modified by the customer during the term of the licence.

11.1           Both Sentral and the customer warrant that nothing in this agreement affects any transfer or assignment of ownership of any intellectual property rights in the software or any content uploaded to or generated through the software by a customer and its authorised users.

11.2           Sentral will own any intellectual property rights in any materials or other things created by or on behalf of Sentral in the course of providing support or additional services.

12.1         Sentral warrants that it has the authority to grant the licence and in the event of any breach of this warranty, Sentral will modify the software, procure the customer’s right to use the service or refund the customer with the full amount of the current year’s licence fees, at Sentral’s expense.

12.1.1 The warranty in clause 12.1 shall not apply if the software is improperly used, the defect is caused by a modification to the software by the customer or a third-party, or the defect could have been avoided by installing an update or upgrade previously made available to the customer.

12.2         Sentral warrants that the software shall perform in all material respects according to the specifications concerning the software outlined in the order form (when used with the appropriate computer equipment) for a period of 90 days following the delivery of the software to the customer.

12.2.1 If a customer considers that there has been a breach of the warranty provided in clause 12.2, the customer must promptly notify Sentral in writing, in order to attract a remedy.

13.1           Where required, the software will be installed by Sentral or its designated and approved contractors.

14.1        Upon initial installation or downloading of the software and/or delivery of a pre-imaged computer system by Sentral, the customer shall be deemed to have accepted the software.

15.1         The customer shall not modify, copy, duplicate, reproduce, merge, combine with any other products, reverse engineer or decompile the whole or any part of the software or combine or incorporate the whole or any part of the software in any other program or system without the prior consent in writing of Sentral.

15.2        The customer shall fully indemnify and hold harmless Sentral against any liability incurred if the said modifications infringe the intellectual property rights of a third person.

15.3        The software as modified remains the property of Sentral or the owner.

15.4       This agreement shall continue to apply to the software as modified.

16.1        The customer shall not reverse assemble or reverse compile the software or any part of the software.

17.1        The customer shall be responsible for protecting the software and the documentation at all times from unauthorised access, use or damage.

17.2        The customer shall maintain adequate technical and procedural access controls and system security requirements and devices, necessary to ensure data privacy, confidentiality, integrity, authorisation and virus protection.

17.3         The customer agrees that the access rights of an authorised individual to the software, cannot be shared with another individual.

18.1        Risk of loss or damage to the software, the media and the documentation shall pass to the customer upon delivery of the software.

18.2       Backup and maintenance of all data stored, created and implemented in any way, is the responsibility of the customer.

19.1         The customer must not make or permit any use of the software in a way which in Sentral’s reasonable opinion is unacceptable. This involves circumstances where:

19.1.1 it involves the publication, communication or recording of anything which is false, defamatory, harassing or obscene;

19.1.2 it involves the communication of unsolicited commercial electronic messages;

19.1.3 it would involve the contravention of any person’s rights (including intellectual property rights);

19.1.4 it may contravene any applicable laws;

19.1.5 it involves removing or modifying any software markings or any notice of Sentral’s rights;

19.1.6 it involves making programs or materials resulting from the software available to any third party for use in the third party’s business;

19.1.7 it involves commercially exploiting any part of the software (including by making it available to any third party); or

19.1.8 it involves distributing or transmitting any part of the software by any means.

19.2         The customer agrees that Sentral may immediately suspend the customer’s right to use all or any part of the software and remove or disable access to any person that contravenes the restrictions in this clause.

20.1     Other than as authorised by this clause, each party agrees to maintain confidentiality over the other party’s confidential information and warrants that it will not use or permit the use of that confidential information; make copies of that confidential information or disclose that confidential information to any other person without the other party’s prior written consent.

20.2     The customer agrees to restrict access to and knowledge of any proprietary information with respect to the software to those employees of the customer who are directly concerned with the use of the software and the customer shall keep such information confidential.

20.3     Notwithstanding the foregoing, the customer‘s obligations with respect to Sentral‘s proprietary and confidential information do not extend to information which:

20.3.1 becomes publicly available without fault of the customer and any person, firm or corporation having apparent authority to act for the customer;

19.3.2 is rightfully obtained by the customer from a third party without restriction as to disclosure;

20.3.3 is shown by written record to be developed by the customer, independently of Sentral and/or the owner;

20.3.4 is shown by written record to have been known or available to the customer at the time of receipt from Sentral; or

20.3.5 is furnished to others by Sentral without restriction on disclosure.

20.4     Sentral shall treat as confidential, all information regarding the customer which comes into its possession pursuant to or as a result of or in the performance of this agreement. Sentral shall not, without the written permission of the customer, disclose such confidential information to a third party.

20.5     The operation of this clause shall survive the termination of this agreement.

21.1        Sentral warrants that it has the right to grant the licence to the customer.

21.2        Subject to clause 21.3, Sentral shall indemnify and hold harmless the customer against any claim made against the customer by a third party alleging that the software infringes the copyright of that third party.

21.3        Sentral shall not be liable to the customer under clause 21.1 or clause 21.2 if:

21.3.1 the customer does not notify Sentral of the other person’s claim or of infringement of copyright within seven days after becoming aware of the claim;

21.3.2 Sentral‘s ability to defend the claim has been prejudiced by the customer‘s non-compliance with any of its obligations under this agreement;

21.3.3 the customer does not give Sentral reasonable assistance in defending the claim;

21.3.4 the claim has arisen because of the use of the software in combination with equipment, materials or computer programs not supplied or approved by Sentral; or

21.3.5 the customer does not permit Sentral to have control of the defence of the claim and all related settlement negotiations.

22.1        Sentral is not liable to the customer or any third party under this agreement or under general law to the extent that any loss or damage is caused or contributed to:

22.1.1 by the negligence of the customer or any third party;

22.1.2 by any breach by the customer of the terms and conditions of this agreement or any other applicable laws, regulations or rules;

22.1.3 by the use of the software in conjunction with any other software not approved in writing by Sentral for use with the software;

22.1.4 by the use of the software in a manner or for a purpose not disclosed by the customer to Sentral prior to the commencement date; or

22.1.5 by any virus or similar occurrence which adversely affects Sentral, or the software which was caused by a customer or its access facilities.

22.2       Sentral shall in no circumstances be liable to the customer or any third party for any consequential, special, indirect, exemplary or punitive losses or any other loss of profit, revenue, goodwill, savings or data, whether arising in contract, tort (including negligence), equity or otherwise, regardless of whether Sentral was advised of such losses in advance.

22.3       Where the customer acquires goods or services under these terms and the goods or services are not goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, then Sentral limits its liability for a failure to comply with any consumer guarantees under the Australian Consumer Law (other than where to do so would otherwise cause all or part of this clause to be void) to, at Sentral’s option, in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced, and in the case of services, re-supplying the services or paying the cost of having the services re-supplied. Except to the extent provided by the foregoing sentence or prohibited by the Australian Consumer Law (whether applied as a law of the Commonwealth or any State or Territory of Australia or other applicable law), all statutory warranties conferred in relation to the supply of goods or services to the customer under these terms are hereby excluded.

22.4       Sentral’s aggregate liability to the customer arising under or in connection with this agreement, in a calendar year, will not exceed the amount of the fees paid by the customer under this agreement in that calendar year.

23.1        Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.

23.2        If a force majeure event occurs, the performance of both parties’ obligations will be suspended for the duration of the event.

24.1       For the purpose of this agreement, the following are terminating events:

24.1.1 the failure to remedy a breach by a party of any of its material obligations under this agreement, where the party in breach has been given at least 14 days’ notice requiring that breach to be remedied;

24.1.2 the appointment of any type of insolvency administrator in respect of the property or affairs of a party;

24.1.3 the entry or proposed entry by a party into any scheme, composition or arrangement with any of its creditors;

24.1.4 the permanent discontinuance of use of the software or any part of the software by the customer; or

24.1.5 any event described in this agreement as a terminating event.

24.2     The licence may be terminated immediately on the happening of a terminating event at the option of the affected party.

24.3     If:

24.3.1 Sentral terminates the licence due to a terminating event caused or materially contributed to by the customer; or

24.3.2 the customer terminates the licence prior to the end of the term, other than due to a terminating event caused or materially contributed to by Sentral,

then the customer must pay to Sentral the early termination fee, which is due and payable within seven (7) days.

24.4     If a terminating event occurs and the subject of that terminating event is the customer, and if Sentral requests, the customer shall destroy such software, copies, revisions, enhancements and up-grades by erasing them from the media and shall certify in writing to Sentral that they have been destroyed.

24.5     Any termination of the licence shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.

25.1        This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the software. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

25.2        For the avoidance of doubt, where there is a conflict between this agreement and the order form, the terms of the order form will prevail.

26.1         The customer shall not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of Sentral.

27.1        This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.

28.1       No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

29.1       Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.

This agreement may be executed in any number of counterpart copies, each of which shall be deemed to be an original, and all of which shall constitute one and the same agreement.

31.1         If a dispute arises between the parties, each party will nominate a representative with authority to negotiate and those representatives must meet within five business days to discuss the dispute and to attempt to resolve the dispute. Both parties shall negotiate in good faith.

31.2        Unless the parties agree to a different form of dispute resolution, any dispute arising in connection with this agreement which is not resolved within 21 days of written notice of the dispute being given by one party to the other party shall be submitted to mediation by a mediator agreed by the parties or, failing agreement within a further 7 days, a mediator nominated by the Australian Disputes Centre Sydney (ADC). The mediation will be conducted in Sydney in accordance with the ADC Guidelines for Commercial Mediation and unless otherwise agreed, each party must pay half of the mediator’s and the ACDC’s fees. If the dispute is not resolved within 60 days after notice of the dispute, the mediation will terminate unless the parties otherwise agree. During such arbitration, both parties may be represented by a duly qualified legal practitioner.

31.3        Nothing in this clause prevents a party from seeking any urgent equitable relief from an appropriate court having jurisdiction over this agreement.

MAINTENANCE AND SUPPORT

This Agreement includes the annual licence/s and support nominated on the order form received by Sentral.

Support and maintenance terms are for bug fixes and issue resolution for existing functionality. Support and maintenance includes any updates released by Sentral to its customers generally during the term of this agreement. All other requests for specific enhancements or new functionality will be considered on a case by case basis and may be subject to an additional charge.

Unless otherwise expressly stated, the support provided is telephone support and on-line support, including remote access to the customer’s file server.

Onsite support may be arranged by agreement and may be subject to an additional charge.

If any payment is not made within 14 days of any due date for payment of annual licence/s or support agreements Sentral shall be entitled, at its discretion, to suspend its remaining obligations under this agreement until the payment has been paid; and/or

1. terminate the licence; and/or
2. re-possess the software; and/or
3. cease to provide the support services; and/or
4. remotely deny access to the software; and/or
5. remotely erase the software from the designated computer system.

SMART BACKUP DISASTER RECOVERY SERVICE

Customers who do not access the software via a cloud hosting service may choose to purchase a back-up and disaster recovery service from Sentral, which is described in Schedule 1 of these terms.

The back up and disaster recovery service will commence on the date specified in the Smart BackUp Invoice. Subject to the terms and conditions of this agreement, the Smart BackUp service shall continue for the term specified in the invoice.

During that term, Sentral will

create a replica of the customer’s local on-premise data back-up generated by the software and store this in two other locations in Australia. The copy will be encrypted in transit and held in off-site storage within Australia. The replication process will be scheduled to run each evening.

The customer remains responsible for ensuring that local data backup is operational and comprehensive and acknowledges and agrees that Sentral will have no liability to the customer or any third party if the local data backup is corrupted, or has not run (for example, due to lack of disk space, among other reasons).

In the event of local server failure, Sentral will make the local data back-up replication available to the customer within 24 hours of being notified. Additional costs to associate this data with the local Sentral instance may be charged on a time and material basis.

Further detail on Service levels are specified in the Schedule 1and may be varied at the discretion of Sentral from time to time by placing those varied service levels on Sentral website.

Upon expiration of the term, the service will automatically renew for another 12-month period, unless either party provides notice to the other party of its intention to not renew the service. If Sentral provides notice to the customer prior to the expiry of the then current term, that it intends to vary the terms of the service and, by the expiry of the then current term, the customer has not provided written notice that it does not accept the varied terms, then the service shall be automatically renewed for a 12-month period, on those varied terms. If the customer provides notice to Sentral that it does not accept the varied terms, then the service will terminate at the expiry of the then current term.

Sentral may vary these terms at its discretion by posting amended terms on Sentral website. If the customer continues to pay for, or continues to use the service it is deemed to have accepted any changes to the terms.

Sentral’s aggregate liability to the customer arising under or in connection with the disaster recovery service, in a calendar year, will not exceed the amount of the fees paid by the customer for the disaster recovery service in that calendar year

The parties acknowledge and agree that all terms and conditions of the Software licence apply to the disaster recovery service.

SMART BACKUP DISASTER RECOVERY SERVICE

SCHEDULE 1 – SERVICE DESCRIPTION AND EXCLUSIONS

Sentral will create a replica of the customer’s local on-premise data back-up generated by the software and store this in two other locations in Australia. The copy will be encrypted in transit and held in off-site storage within Australia. The replication process will be scheduled to run each evening.

In the event of local server failure, Sentral will make the local data back-up replication available to the customer within 24 hours of being notified. Additional costs to associate this data with the local Sentral instance may be charged on a time and material basis.

Exclusions

• The Service is dependent on the server having consistent access to the internet. If this is interrupted or changed by the customer, then Sentral disclaims all liability for the server not having an accurate back-up.
• The Service does not store data that is provided by third parties. These third parties include, but are not limited to:
  • Moodle
  • Xero
• The Service does not store customer-created data that is hosted by Sentral that is not core to the data required for the service to operate. This includes:
  • Fileshares where the service is used by a customer as an internal fileshare service; or
  • Websites where the service is used by the customer to host a static HTML site.
• Any data charges as a result of the use of the service are to be borne by the customer, not Sentral.

September 2023