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Memberships & accreditations:
1.1 Guardhouse Pty Limited (ACN 629 088 795) (Guardhouse) agrees to provide you (Customer) with the Software Licence granted in clause 3 to use the Software in accordance with:
(a) the terms of this Agreement; and
(b) the Order.
1.2 If there is any inconsistency between the Order and the terms of this Agreement, this Agreement shall prevail.
1.3 By accepting the terms of this Agreement or the Order in writing, paying an invoice issued by Guardhouse, or instructing Guardhouse to proceed, you acknowledge and agree that you have read and understood the Agreement and are deemed to have agreed to be bound by its terms and the terms of the Order.
2.1 This Agreement applies for the duration of the Term, unless terminated earlier in accordance with clause 8.
2.2 At the end of the Term, this Agreement will automatically renew for further, consecutive periods of the same duration of the Term (Further Terms) unless either party notifies the other party, no less than 30 days prior to the then-current term, that they do not wish to renew.
3.1 Guardhouse will provide the services to the Customer as set out in the Order (Services).
3.2 The Customer and its Users may access the Software at any time, subject to planned maintenance windows for which Guardhouse will provide reasonable advance notice where practicable.
3.3 Guardhouse may update or modify any features, functionality or content of the Software at any time, without notice and without liability.
4.1 Subject to the Customer paying the Fees in accordance with clause 7 and complying with, and ensuring its Users comply with, the provisions of this Agreement, Guardhouse grants to the Customer a non-exclusive, non-transferable, revocable licence to use the Software during the Term for the sole purpose of accessing and using the Software for the Customer’s internal business purposes, in accordance with this Agreement (Software Licence).
4.2 All Intellectual Property Rights in the Software are owned by Guardhouse and this Agreement does not transfer or assign ownership of any Intellectual Property Rights in the Software to the Customer or any other person.
4.3 The Customer must not, and procures that its Users will not, reproduce, copy, distribute, modify, sell, rent, lease, license, sublicense, resell, reverse engineer, decompile, attempt to obtain the source code or algorithms or transfer any part of the Software or the content available on the Software.
4.4 The Customer indemnifies Guardhouse for any loss, cost, damage, claim, or expense suffered or incurred by Guardhouse in relation to any use of Guardhouse’s Intellectual Property Rights, including the breach of any relevant Software Licence or any further conditions provided by Guardhouse in connection with the use of the Software, by the Customer and its Users.
4.5 The Customer grants to Guardhouse a non-exclusive licence to store, access, reproduce, and use Data during the Term solely in order for Guardhouse to provide the Services to the Customer, including:
(a) to provide the Services;
(b) to provide updates or improve the Software;
(c) for Guardhouse’s internal operational purposes, including product improvement using anonymised and aggregated data only;
(d) as required by law; and
(e) to prevent or address any service, security, technical or support issues.
4.6 The Customer grants Guardhouse a non-exclusive, royalty-free licence to use the Customer's name, business name, trade marks and logo in Guardhouse's marketing, promotional and sales materials. Guardhouse will comply with any reasonable branding guidelines notified by the Customer in writing.
5.1 The Customer must, and must ensure its Users will:
(a) install and keep installed any plug-ins or applications on its computer system or device that are required in order to access and use the Software;
(b) create an account to access and use the Software (Account);
(c) use reasonable security measures to prevent unauthorised access to, or use of, the Software;
(d) cooperate with any investigations by Guardhouse relating to outages, security problems, unauthorised use of the Software or suspected breaches of this Agreement or applicable law;
(e) promptly notify Guardhouse of any known or suspected unauthorised use of an Account or any other security breach;
(f) comply with all reasonable directions of Guardhouse in connection with the Software, including by providing any information or data reasonably requested by Guardhouse;
(g) not use the Software for unlawful, obscene, offensive or fraudulent content, or activity or to benefit a third party;
(h) comply with all applicable laws, including Privacy Laws, in connection with the use of the Software and Account; and
(i) only use the Software for the Customer’s internal business resourcing purposes and for no other purpose.
5.2 The Customer acknowledges that Guardhouse makes no warranties that the Software is error free or will be accessible on the Customer’s systems or that the User’s access will be uninterrupted. The Customer is responsible for reviewing and verifying the accuracy of any output, calculation, report or record generated by the Software before relying on it, including for payroll, wage or employee entitlement purposes.
5.3 The Customer indemnifies Guardhouse and its Affiliates for any loss, cost, damage, claim, or expense suffered or incurred by Guardhouse or its Affiliates as a result of the Customer’s, or any of its Users, breach of this clause 5.
6.1 The Customer acknowledges and agrees that it is responsible for the Customer’s use, and its Users’ use, of the Software.
6.2 The number of Users will be specified in the Order.
6.3 Each User must create its own account to access the Software, and the Customer warrants and represents that its Users will comply to these terms and conditions (to the extent relevant to the Users) and any Software terms and conditions.
6.4 The Customer may add more Users at any time. The Customer acknowledges that Guardhouse reviews actual usage of the Software and may adjust the Fees at any time on the basis of actual usage, and that additional Users will affect the Fees, as set out in clause 7.
6.5 If required by Guardhouse, the Customer must supply information requested by Guardhouse, including but not limited to the details of its Users, and undertakings as to the conduct of its Users.
6.6 The Customer must immediately notify Guardhouse if it suspects or becomes aware of misuse of the Software, breach of any laws, or anything that its Users may do to cause the Customer to be in breach of this Agreement.
6.7 Immediately upon receipt of any notice given under clause 6.6, Guardhouse may in its sole discretion disable or suspend the relevant User or terminate this Agreement.
6.8 The Customer indemnifies Guardhouse for and against any acts or omissions by its Users in respect of the Software.
7.1 The Fees payable under this Agreement are calculated based on the estimated number of Users nominated by the Customer at the commencement of initial Term, as set out in the Order. The Customer warrants that the estimate is a genuine and reasonable estimate of its expected User numbers for the following 12-month period.
7.2 The Fees must be paid in accordance with the Payment Terms.
7.3 In accordance with clause 6.4, Guardhouse may issue a supplementary invoice for any additional Users, calculated at the per-User rate in the Order, from the date the increase first occurred.
7.4 In addition to Guardhouse’s rights under clause 7.3, Guardhouse will conduct a usage review on or around 1 January and 1 July of each year (each a Review Date). At each Review Date, Guardhouse will assess the actual average number of Users over the preceding 12-month period. If that actual average exceeds the estimated number in the Order, Guardhouse may:
(a) update the Order to reflect the higher usage level for the following period; and
(b) issue a back-charge invoice for any shortfall in Fees for the preceding review period, calculated at the per-User rate set out in the Order.
7.5 Guardhouse may increase the Fees (a Fee Increase): (a) by no more than 5% at the end of each 12-month period, which will apply to the following 12-month period; and (b) by giving the Customer no less than 60 days’ notice, where a Fee Increase is more than 5% or involves a structural change to Guardhouse’s pricing model. If the Customer does not want to accept the Fee Increase, they may elect to terminate by providing 30 days’ notice. If the Customer does not reject the Fee Increase, the increased rate will apply from the next invoice.
7.6 If the Customer fails to pay an invoice in accordance with the Payment Terms, any such unpaid Fees owing will constitute a debt immediately due and payable to Guardhouse, and Guardhouse reserves the right to restrict the Account, the Software Licence, and the Services provided by Guardhouse unless and until the debt is paid. The Customer indemnifies Guardhouse for all costs incurred in recovering such debt.
7.7 Guardhouse will not be liable for any loss, cost, damage, expense, or claim (including for negligence) suffered or incurred by any person in connection with use of a third-party payment Software or service.
7.8 Unless this Agreement states otherwise, each amount payable by a party under the Agreement in respect of a taxable supply by the other party is expressed as a GST inclusive amount.
8.1 Guardhouse may immediately terminate or suspend the Customer’s Account, any of its Users’ access, or this Agreement, by notice if, as determined by Guardhouse in its sole discretion:
(a) the Customer has failed to pay the Fees in accordance with the Payment Terms;
(b) Guardhouse believes that the Customer or any of its Users has breached a term of this Agreement, or has used the Software other than for the purposes of, and in compliance with, this Agreement;
(c) there has been any unauthorised use of the Software or access to an Account; or
(d) such action is otherwise required by law or order of a court or relevant authority, without incurring any liability in respect of that termination or suspension.
8.2 Either party may terminate this Agreement immediately upon notice to the other party (the Relevant Party) if:
(a) the Relevant Party commits a material breach of the Agreement which is incapable of being remedied or, if the material breach is capable of being remedied, the Relevant Party fails to remedy the breach within 14 days after being required in writing to do so;
(b) the Relevant Party or any of its employees, agents or representatives perpetrates an act or omission constituting fraud, wilful misconduct, or gross negligence in connection with this Agreement; or
(c) the Relevant Party is or represents that it is insolvent, or has an administrator, liquidator or receiver appointed, or the Relevant Party enters or threatens to enter into bankruptcy.
9.1 Upon termination of this Agreement:
(a) Guardhouse will cease providing the Services;
(b) the Software Licence will be terminated;
(c) each party must return to the other party any Confidential Information, property and/or materials obtained in the course of the Agreement; and
(d) the Customer will:
(i) be liable to pay the Fees payable under this Agreement; and
(ii) if terminated by Guardhouse under clause 8.1 or 8.2, pay Guardhouse any additional costs incurred by Guardhouse
from or in connection with early termination.
10.1 Each party acknowledges that it may receive Confidential Information of the other party and agrees to keep that Confidential Information secret, to protect and preserve its confidential nature, and not use it or disclose it to any person (or allow or assist or make it possible for any person to observe or have access to it) without the written consent of the other party, except to the extent necessary to: (a) perform its obligations under or comply with this Agreement; (b) obtain professional advice in relation to this Agreement; or (c) comply with disclosure obligations required by law, provided that the other party is given reasonable notice of the required disclosure.
10.2 The Customer must and must ensure each of its Users will:
(a) comply with Privacy Laws and the Guardhouse Privacy Policy;
(b) obtain all required consents and make all the required disclosures and notifications to ensure that it has the right to use, collect, provide and disclose to Guardhouse any Personal Information contained in the Data.
10.3 The Customer acknowledges that it will:
(a) implement sufficient procedures and virus checks (including anti-virus and other security checks) to satisfy the Customer’s particular requirements for the accuracy of data input and output; and
(b) ensure that any information or data the Customer or a User input into the Software is free of viruses or anything else that may interfere with or damage the operations of the Software or the User’s computer or mobile device.
11.1 The Customer acknowledges and agrees that the Software is provided “as is” without warranties of any kind, either express or implied. Guardhouse does not warrant that the Software will operate uninterrupted or error free or that any materials made available to the Customer or Users are accurate, complete, reliable, current or error free.
11.2 To the maximum extent permitted by law, Guardhouse will not be liable for any loss, cost, damage, expense, or claim, suffered or incurred by the Customer or its Users in connection with this Agreement or use of the Software, including the Customer’s or any User's reliance on any output, calculation, report or record generated by the Software.
11.3 To the extent Guardhouse’s liability cannot be limited under clause 11.2, Guardhouse’s liability to the Customer for any loss or damage however caused that the Customer suffers or incurs in connection with this Agreement is limited to the resupply of the Services (or the relevant part of the Services) that gave rise to the loss or damage.
11.4 Neither party will be liable to the other party (whether in contract, tort, negligence, breach of statutory duty or otherwise) for any Consequential Loss suffered or incurred by the other party in connection with this Agreement.
11.5 The Customer indemnifies Guardhouse and its Affiliates from and against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which is suffered or incurred by Guardhouse, or its Affiliates, as a result of:
(a) Aany breach of this Agreement;
(b) a misuse of the Software by a User;
(c) injury, death, or property damage;
(d) fraud, wilful misconduct, or gross negligence; or
(e) dany third-party action, claim, demand or proceedings instituted against Guardhouse, as a result of, or in connection with, an act or omission of the Customer or a User.
11.6 Any of the terms of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Guardhouse will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Customer’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
12.1 A party must not commence court proceedings in relation to a dispute arising under this Agreement until it has exhausted alternative dispute resolution procedures as set out in this clause, unless the party seeks urgent or injunctive relief.
12.2 If a dispute arises between the parties arising out of or in connection with this Agreement, either party may give notice of the dispute to the other party (Dispute Notice). If a Dispute Notice is given:
(a) the parties’ representatives must negotiate in good faith as soon as possible in an attempt to resolve the dispute;
(b) if the dispute is not resolved within 7 days of the Dispute Notice being issued, the authorised representatives (or equivalent) of the parties must meet to resolve the dispute within 14 days; and
(c) if the dispute is not resolved within 21 days of the Dispute Notice being issued, the parties must agree to appoint an independent third party mediator to attempt to resolve the dispute by mediation and the parties must participate in the mediation in good faith. The costs of the mediation will be shared equally between the parties.
12.3 All communications concerning negotiations made by the disputants in connection with this clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
13.1 Force Majeure Event
(a) A party is not in breach of this Agreement and will not be liable to the other party for a delay or failure to perform an obligation to the extent it results from a Force Majeure Event.
(b) The party affected by the Force Majeure Event must notify the other party as soon as reasonably practicable and must take all reasonable steps to limit the effects of the Force Majeure.
13.2 Entire agreement: This Agreement encompasses the entire understanding and agreement between the parties as to the subject matter of this Agreement and supersedes all prior discussions or agreements.
13.3 Governing Law & Jurisdiction: This Agreement is governed by the laws of New South Wales, Australia, and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia, and their courts of appeal.
13.4 Assignment & Novation: The Customer must not assign or novate its rights or obligations under this Agreement without the prior written consent of Guardhouse. Guardhouse may assign or novate its rights or obligations under this Agreement on notice to the Customer.
13.5 Relationship of the parties: Unless expressly stated otherwise this Agreement does not create a relationship of employment, trust, agency or partnership between the parties.
13.6 Severability: Each provision of this Agreement is to be read and construed as a separate and severable provision or part of this Agreement and if any provision is void or unenforceable then that provision will be severed, and the remainder will be read and construed as though the severable provision does not exist or apply.
13.7 Subcontracting: The Customer acknowledges and agrees that Guardhouse may subcontract the performance of all or any part of its obligations under this Agreement.
13.8 Variation: An amendment or variation to this Agreement is not effective unless it is in writing and executed by the parties.
13.9 No Waiver: A right or obligation under this Agreement may only be waived in writing by the party granting the waiver and is only effective to the extent set out in the written waiver.
13.10 Survival: Any indemnity or obligation of confidence or any other term by its nature intended to survive termination under this Agreement continues after termination or expiry of this Agreement.
14.1 Definitions
Affiliates means directors, officers, employees, contractors, successors, and related entities and related body corporate, as defined in the Corporations Act 2001 (Cth).
Confidential Information means all confidential or proprietary information (however recorded or preserved) that is disclosed or made available (in any form or medium), directly or indirectly, by the Disclosing Party (or any of their respective Users or advisers) to the Recipient (or any of their respective Users or advisers) whether before, on or after the date of this Agreement, including without limitation all confidential or proprietary information or data of any kind relating to the Disclosing Party or their respective businesses, including but not limited to affairs, financial or trading position, assets, contracts, Intellectual Property Rights, customers, clients, suppliers, employees, strategies, plans, business plans, operations, processes, intentions or market opportunities; the know-how, designs, trade secrets, technical information or software of the Disclosing Party; all copies of such information; and any findings, data or analysis derived from such information, but excluding Confidential Information that: (a) becomes generally available to the public other than as a direct result of disclosure by the Recipient or any other person in breach of this Agreement; (b) the Recipient can prove was received from a source not connected with the Disclosing Party and not under an obligation of confidence; (c) the Recipient can prove was lawfully in its possession before disclosure and not subject to any obligation of confidence; or (d) the Parties agree in writing is not confidential.
Consequential Loss means any indirect, special or consequential loss, or any loss of revenues, loss of reputation, loss of profits, loss of bargain, loss of actual or anticipated savings, theft, loss or corruption of data, cyber security breaches, loss arising out of any business decisions made as a consequence of using the Software, or lost opportunities (including opportunities to enter into arrangements with third parties).
Data means all information, content, and data transmitted or integrated between Guardhouse, the Customer, and any User on the Software and any Accounts with respect to use of the Software (including information inputted by the Customer and its Users), including Personal Information.
Fees means the subscription fees as set out in the Order.
Force Majeure Event means an event outside the reasonable control of the affected party that could not have been prevented or avoided by taking all reasonable steps, including natural disasters, acts of God, war, terrorism, civil unrest, government action, industrial action, system failures, or service provider disruption, but excluding a state of emergency declaration, epidemic, or pandemic.
GST means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all present and future rights, whether registered or unregistered, in copyright, design, patent, trademark, trade, business, company or domain name, know-how, inventions, processes, confidential information, database rights or software, source code, and any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields.
Order means the commercial details of this Agreement, including the Fees, number of Users included in those Fees, and Payment Terms, as agreed between Guardhouse and the Customer in writing.
Privacy Policy means the Guardhouse privacy policy located at https://www.guardhousehq.com/privacy-policy, as updated from time to time.
Payment Terms means the terms and method of payment as set out in the Order.
Personal Information has the meaning given to it in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means any applicable Australian State, Commonwealth, or international laws, regulations, principles, policies, and industry codes in relation to data and privacy protection, including the Privacy Act and the Australian Privacy Principles.
Software means the Guardhouse software program which is owned, controlled, managed and/or hosted by Guardhouse.
Term means the term of this Agreement as set out in the Order.
User means a guard employed or contracted by the Customer, granted access to the Account by the Customer as agreed in the Order.
14.2 Interpretation In this Agreement:
(a) a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(b) references to a person includes an individual, partnership, joint venture, association, firm or a body, whether incorporated or unincorporated;
(c) a reference to a party includes a reference to the party’s executors, administrators, successors and assigns;
(d) headings are for convenience only and will not affect interpretation of this Agreement;
(e) where a word or phrase is given a particular definition, other parts of speech and grammatical forms of that word or phrase in this Agreement will have a corresponding meaning;
(f) a reference to dollars or $ is a reference to Australian dollars;
(g) the singular includes the plural, and vice versa;
(h) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation.