RECITALS

1. Compono operates the Licensed Software and Platform described in Schedule 1.
2. Compono has agreed to grant to the Client a licence to use the Licensed Software and Platform and provide the Support Services for the Term, in accordance with the terms and conditions set out in this document and the Proposal.
3. This document sets out the Master Services Agreement which is to be read together with the Proposal. Collectively the Proposal and this Master Services Agreement are called the ‘Agreement’.
4. If there is an inconsistency between the Proposal and this Master Services Agreement, the terms in the Proposal will prevail over the Master Services Agreement.

The Parties agree as follows:

1.1 Definitions

In this Agreement, unless the context otherwise requires:

Agreement means this document together with any Schedules and the Proposal, as may be later amended in accordance with the Master Services Agreement and the Proposal or as otherwise may be agreed by the parties in writing;

Business Day means a day which is not a Saturday, Sunday or public holiday in a State or Territory of Australia.;

Client  means the client that signs the Proposal;

Client Data means data that is entered into the Licensed Software or Platform by or on behalf of the Client, including Personal Information provided by the Client through its use of the Licensed Software;

Compono means Compono Australia Pty Ltd (ACN 650 552 373);

Compono Intellectual Property means all Intellectual Property Rights in the Licensed Software and Platform (including any modifications or additions thereto) and any other rights to Intellectual Property otherwise created or owned by Compono;

Compono Service Providers means Compono’s related entities, affiliates, partners, independent contractors, third party platforms and service providers with whom Compono has commercial relations and to whom Personal Information may be transferred. Further details in relation to Compono Service Providers are set out in the Privacy Policy.

Confidential Information means any non-public and non-trivial information, in whatever form or medium, disclosed by a Party to the other Party whether before or after the date of this Agreement in connection with or related to a Party’s products, Trade Secrets or intellectual property rights and includes information that would be regarded as confidential by a reasonable business person, relating to:

1. the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
2. the operations, processes, product information, know-how, designs or software of the disclosing party;
3. the design, specification and content of the Licensed Software and Platform (which shall be confidential information of Compono); and
4. any information developed by the Parties in the course of carrying out this Agreement.

Effective Date means the date on which the Proposal is executed or such other date as notified by Compono to the Client;

Fees means all Fees payable by the Client as specified in Schedule 2 and the Proposal or as agreed in writing between the Parties;

Force Majeure means an event which includes any act of God, strike, lockout, act of public enemy, war, blockade, public riot, earthquake, lightning, fire, storm, flood, computer virus, pandemic and any other similar cause or event which is not reasonably within the control of the Parties.

GST means tax levied under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and legislation of a State or Territory that is enacted to replace or supplement that Act;

Initial Term means the period of time commencing on the Effective Date and continuing for the time period specified in the Proposal.

Intellectual Property Rights means rights to all Intellectual Property;

Intellectual Property means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, whether registerable or not and whether registered or not, including all copyrights, all rights in relation to computer software, source codes or documentation thereof, inventions, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights, circuit layouts, trade secrets and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields recognised anywhere in the world together with any documentation relating to those rights .

Licence Fee means the fees relating to the licenses for the Licensed Software and Platform granted at clause 3 and as set out in the Proposal;

Licensed Software means the software described in Schedule 1, including any modifications or updates thereof.

Personal Information means any information relating to a data subject as defined in the Privacy Act 1988 (Cth) (“Privacy Act”) as amended from time to time.

Personnel means employees, officers, agents or independent contractors of a Party.

Platform means the platform which hosts the Licensed Software;

Privacy Policy means a statement setting out how Compono will collect, use, manage and disclose Personal Information, which can be found on www.compono.com.

Proposal means the proposal, quote or deal sheet prepared by Compono in relation to the Licensed Software and Platform and that is to be signed by the Client and read together with this Master Services Agreement;

Schedule means a schedule to this document;

Master Services Agreement means Compono’s standard software licence and service terms, as set out in this document (including any Schedules);

Support Services means the support services in relation to the Licensed Software and Platform as set out in Schedule 3;

Term has the meaning provided in clause 2;

Trade Secrets means intangible and tangible assets possessed by a Party including, but not limited to, trade connections, customer supply lists, research and development information, information about business strategies, methods of doing business, costing and price information, source code for computer software, manufacturing technology, information relating to technical processes and prototypes and any other information which can be used for economic advantage in the operation of a competitive business or any other enterprise.

User means an individual authorised by the Client to use the Licensed Software and Platform through dedicated login credentials.

1.2 Interpretation

In this Agreement, unless the contrary intention appears:

1. headings are for ease of reference only and do not affect the meaning of this Agreement;
2. the singular includes the plural and vice versa and words importing gender include other genders;
3. other grammatical forms of defined words or expressions have corresponding meanings;
4. a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this agreement and a reference to this agreement includes any schedules and annexures;
5. a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
6. a reference to “A$”, “$A”, “dollar” or “$” is a reference to Australian currency;
7. a reference to a specific time for the performance of an obligation is a reference to that time in the State, Territory or other place where that obligation is to be performed;
8. a reference to a party includes its executors, administrators, successors and permitted assigns;
9. words and expressions importing natural persons include partnerships, bodies corporate, associations (whether incorporated or not), government, governmental agencies, semi-governmental agencies and local authorities;
10. a reference to any legislation or statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent State legislation, as applicable;
11. words and expressions defined in the Corporations Act 2001 (Cth) as at the date of this agreement have the meanings given to them in that Act at that date; and
12. a reference to writing includes typewriting, printing, lithography, photography and any other method of representing or reproducing words, figures or symbols in a permanent and visible form.

1. The term of this Agreement will commence on the Effective Date and will continue until the earlier of:

1. the end of the Initial Term or Extended Term in accordance with clause 2.2;
2. or termination in accordance with Clause 12 (the ‘Term’).

2. This Agreement will automatically renew for consecutive one (1) year terms after the Initial Term (‘Extended Term’) unless either Party provides the other with written notice not later than thirty (30) days prior to the expiration of the then current term.

 

1. During the Term, Compono agrees to provide the Client with a non-exclusive, non-sublicensable and non-assignable licence to use the Licensed Software and Platform in relation to the Client’s business.
2. The Client can report issues relating to the Platform via Compono's designated customer support channels. Compono shall use reasonable endeavours to respond to issues, taking into account the severity of the issue and the impact on the Customer’s business.
3. The Client agrees to provide Compono reasonable access to all necessary personnel to answer questions or resolve problems reported by the Client regarding the Licensed Software and the Platform.

 

4.1 Use of Licensed Software and Platform

1. 1. 1. The Client acknowledges that Compono is the sole owner of the Compono Intellectual Property. The Client agrees that it will not:
         1. exceed the number of Users specified in the Proposal;
         2. directly or indirectly do anything that would or might invalidate or put in dispute Compono’s title in the Compono Intellectual Property;
         3. use the Compono Intellectual Property in any way that could damage the reputation of Compono or the goodwill or other rights associated with the Compono Intellectual Property; or
         4. permit any third party to use the Compono Intellectual Property other than as set out in this Agreement.
      2. Compono will make the Licensed Software and Platform available for use to the Client on the Effective Date. Set-up of the Client’s access to the Licensed Software is the responsibility of the Client, in accordance with any directions given by Compono. Compono will provide reasonable assistance during this set-up phase.

 

5.1 The Client acknowledges and agrees that:

1. In relation to the Hire product, in providing the Licensed Software and Platform, Compono is acting merely as a software provider to facilitate matching and communication between potential job applicants and the Client.
2. Compono is not involved in any part of the Client’s candidate selection, employee or decision processes, and will not be liable for any errors that occur as part of these processes.
3. Compono is not involved in any part of the Client’s decisions to select and provision learning courses to its employees and Compono is not responsible for ensuring that the Client complies with any regulatory or legal requirements and will not be liable for any errors that occur in that regard.
4. In relation to the Engage product, Compono is acting merely as a software provider to administer surveys and / or collect company employee data and describe what the data means. Compono is not responsible for the accuracy of the data provided or the recommendations or advice generated by the software. Compono is not responsible for any decisions or change management initiatives of the Client, whether in response to the Client’s use of the Engage product or otherwise. 
5. Compono does not guarantee continuous, uninterrupted or secure access to the Licensed Software and Platform. The Client acknowledges that access to and use of the Licensed Software and Platform may be disrupted by numerous factors outside of Compono’s control, and Compono is not liable to the Client for any delay or failure to provide the Services as a result of circumstances beyond Compono’s reasonable control.

5.2 Without limiting the foregoing, neither Compono nor any of its shareholders, directors, officers, independent contractors employees, representatives or licensors (collectively, the “Compono Parties”) shall be liable, directly or indirectly, to the Client, or any other person, for any error occurring, including without limitation for any loss or damage suffered as a result of any of the following:

1. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, theft, destruction, alteration or unauthorized access to records;
2. the accuracy, suitability or currency of any information on the Licensed Software and Platform or any related products including third party material and advertisements on it; and
3. the services or operation in respect to third-party links which are provided for the Client’s or other users’ convenience.

 

6.1 The Client will be solely responsible for the use of the Licensed Software. The Client must:

1. take full responsibility for each of its usernames and passwords;
2. use commercially reasonable efforts to prevent unauthorized access to, or use of the Licensed Software, and by no less efforts than those safeguards employed by the Client to protect its own non-public proprietary and other confidential information;
3. notify Compono immediately in writing if the Client learns of any unauthorized access or use of the Licensed Software;
4. maintain those minimum requirements provided to the Client by Compono in writing regarding the Licensed Software which must be adhered to strictly by the Client in order to ensure proper functioning of the Licensed Software;
5. use the Licensed Software only in accordance with the provisions of this Agreement; and
6. where, pursuant to a Proposal, the Client is permitted to allow its customers to access or benefit from the Licensed Software, ensure that its customers are aware of and abide by the provisions of this Agreement and the Client shall remain liable for any breach of the provisions of this Agreement by its customers.

6.2 Compono has the right to suspend or cancel access to and/or use of the Licensed Software and Platform by the Client or any other user at any time, if the Client has violated any of the provisions of this Agreement or attempted to harm the Licensed Software.

6.3 The Client must not, and shall not authorise or permit any other person acting on its behalf, directly or indirectly, to:

1. sell, resell, transfer, assign, distribute, copy, publish, transmit, distribute, create derivative works of or otherwise disseminate, exploit or make available the Licensed Software or attempt to create a similar product to the Licensed Software;
2. modify, reverse engineer, reproduce, decompile, translate or disassemble the Licensed Software; or
3. use the Licensed Software in any manner or for any purpose other than as expressly contemplated by this Agreement.

 

7.1 Compono may provide the Client with such updates or new releases of the Licensed Software as Compono in its discretion may release, however, Compono is under no obligation under this Agreement to provide updates or new releases.

7.2 Where an update or new release is provided pursuant to clause 7.1:

1. Compono will make available the update or new release at no additional charge to the Client;
2. where an update or new release contains additional functionality to the then current Licensed Software, Compono may charge for an update or new release; and this Agreement will continue to apply in all respects to the update or new release which shall be deemed to be the Licensed Software for the purpose of this Agreement.

 

8.1 The Client must pay the Fees to Compono in accordance with the fees set out in the Proposal and terms set out at Schedule 2 of this Agreement. Unless otherwise specified, the Fees set out in this Agreement apply for the Term of the Agreement.

8.2 Where the Term of this Agreement continues for an Extended Term, the pricing for the Extended Term shall be as advertised on Compono’s website www.compono.com thirty (30) days prior to the expiration of the then current term. The Client is responsible for checking the pricing on the website. If there is no such pricing advertised on Compono’s website at the relevant time, Compono must notify the Client of the pricing that will apply for the Extended Term at least thirty (30) days prior to the expiration of the then current term. If Compono does not notify the Client by such time, then the pricing shall be unchanged for the Extended Term or as otherwise agreed between the parties.

8.3 All payments must be without set-off, deduction or withholdings of any kind including charges from any financial institution.

8.4 If a payment due from the Client under this clause is subject to tax, Compono shall be entitled to receive from the Client such amounts as shall ensure that the net receipt, after tax, to Compono in respect of the payment is the same as it would have been were the payment not subject to tax.

8.5 Where the Client does not pay the Fees by the due date, Compono may charge interest on the outstanding fees at a rate of ten per cent (10%) per annum compounded daily.

8.6 Nothing in this clause precludes Compono from commencing an action against the Client for debt recovery.

 

10.1 Nothing in this Agreement shall limit or exclude either Party’s liability for:

1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
2. fraud or fraudulent misrepresentation; or
3. breach of the terms to the extent they are implied by the Australian Consumer Law contained in Schedule 2 Part 3-2 Division 1 Subdivisions A-C of the Competition and Consumer Act 2010 (Cth) (“CCA”) or equivalent provisions implemented by the State of Queensland as amended from time to time or any other liability which cannot be limited or excluded by applicable law.

10.2 Subject to clause 10.1 above:

1. The Client agrees that the Licensed Software and Platform are provided on an “as-is” and “as available” basis and that it uses the Licensed Software and Platform at its own risk.
2. Neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any, indirect or consequential loss arising under or in connection with this Agreement;
3. Notwithstanding any other clause of this Agreement, Compono shall not be liable for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered as a result of the data collected or stored under this agreement being lost or corrupted where such loss of corruption is not caused by Compono.
4. Either Party’s total liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to all amounts actually paid or payable by the Client (exclusive of GST) in the six (6) month period immediately preceding the event giving rise to such liability.

 

11.1 Indemnity by the Client

In this clause, a reference to Compono shall include Compono’s officers, employees and agents (“Officer”), and the provisions of this clause shall be for the benefit of Compono and each such Officer, and shall be enforceable by each such Officer, in addition to Compono. Notwithstanding anything to the contrary in this Agreement, the Client shall indemnify, defend and hold indemnified Compono from and against:

1. any and all threatened or actual claims, actions suits, and demands (collectively, “Claims”) which are brought by the Client in connection with the Client’s use of the Licensed Software, including without limitation any act or omission relating to the relationship between Client and any other user;
2. any and all third-party Claims which arise out of or are related to:
   1. a breach by the Client of any of its representations, warranties, covenants or undertakings made in this Agreement; or
   2. the negligence or misconduct of the Client, or the violation of any law or regulation by the Client.

11.2 Indemnity by Compono

Notwithstanding anything to the contrary in this Agreement, Compono shall indemnify, defend and hold the Client indemnified from and against any and all third-party Claims and all Costs which arise out of or are related to:

1. the infringement of any third-party intellectual property right by Compono, so long as such infringement has not been caused (directly or indirectly) by any unauthorised modification or other use of the Licensed Software by the Client or any other person working on the Client’s behalf; or
2. the negligence or wilful misconduct of Compono.

 

12.1 Immediate termination by either party

A Party may terminate this Agreement immediately by notice in writing if the other party is in breach of any material term of this Agreement and such breach is not remedied within thirty (30) days’ written notice by the Party not in breach.

12.2 Consequences of termination

If notice is given pursuant to clause 12.1:

1. the Client remains liable for any outstanding Fees payable under clause 8 of this Agreement, as well as any reasonable costs incurred by Compono and directly attributable to the termination (unless if the Agreement is terminated due to Compono’s breach); and
2. Compono may in its sole discretion, in addition to terminating the Agreement:
   1. be regarded as discharged from any further obligations under this Agreement; and
   2. pursue any additional or alternative remedies provided by law.
3. The Client’s right to use the Licensed Software will cease as at the date of Termination.

This clause survives the termination of this Agreement.

 

13.1 Specified address for service

Until a Party gives the other Party written notice of a change of details, the notice details for that Party are as set out in the Proposal.

13.2 Means of giving notices

A notice, consent or other communication in connection with this Agreement must be in writing. A notice will be regarded as given, served and received by the addressee if sent by email, at the earliest to occur of the time that the party giving the notice receives a “delivery receipt” or a “read receipt” or by 5:00 pm on the next Business Day.

 

14.1 Marketing

Compono may identify the Client and use its name, logo and any in customer lists, marketing materials, and press releases (“Promotional Material”).  Compono may use and disseminate such Promotional Material in presentations or through the use of print, electronic, video or internet-based media within Australia or globally.

14.2 Whole agreement

This Agreement and the documents referred to in it contain the whole agreement between the Parties and supersede all previous agreements between the Parties.

14.3 No reliance on other matters

Each of the Parties acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty or other assurance except those set out in this Agreement.

14.4 Legal costs

The Parties must each pay their own legal and other expenses relating directly or indirectly to the negotiation, preparation and execution of this Agreement and all documents incidental to it.

14.5 Amendment

1. This Agreement may be amended by Compono on the provision of 28 days written notice to the Client. If the Client does not agree to the amendment, the Client may terminate the Agreement with written notice and the termination shall take effect from the date that the amendment is due to take effect.
2. This Agreement may be amended upon the mutual written agreement of both Parties.

14.6 Assignment

Compono may assign or novate its rights and obligations under this Agreement in its discretion by written notice to the Client provided that it remains liable to the Client for its obligations. The Client may not assign its rights or novate its obligations under this Agreement without the written consent of Compono.

14.7 Execution

The Parties agree that this agreement may be executed electronically and that any signature required directly or incidental to this Agreement may be signed electronically, except where required to be physically signed by law.

14.10 Further assurance

Each Party must promptly execute all documents and do all things that another Party from time to time reasonably requests to effect, perfect or complete this Agreement.

14.11 Force Majeure

Neither Party shall be liable to perform its obligations under this Agreement or for any delay in such performance while its obligations cannot be performed as a result of a Force Majeure.

14.12 Dispute resolution

c. The parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between senior executives of the parties, who have authority to settle the same.
d. Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.

14.13 Governing law

This Agreement is governed by and must be construed in accordance with the laws of the State of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of Queensland.

 

The Licensed Software and Platform relates to one or more of the following products as set out in the Proposal:

Compono Engage: a culture mapping, team and business composition, and hiring benchmarking software product.

Compono Hire: an intelligent hiring, hiring automation, and candidate analytics software product.

Compono Develop: a learning management and learning content delivery software product (whether branded as Develop, Clui or otherwise).

1. Payment of Fees
   1. The Client authorises Compono to charge the Client’s credit card or to invoice the Client as follows:
      1. For Licence Fees:
         The Licence Fees will be payable on the Effective Date and on a monthly basis thereafter.
      2. For all other Fees:
         All other Fees are payable in arrears, monthly or at such intervals and such times as Compono may, from time to time, stipulate. and agreed with the Client.
   2. The Client authorises Compono to charge the Client’s credit card or invoice the Client for all Fees where such Fees have been:
      1. Specified in the Proposal;
      2. Otherwise agreed by the Parties in writing; or
      3. Varied by Compono in accordance with the terms of this Agreement.
         By submitting such credit card information, Client gives Compono permission to charge all fees incurred through the Client’s account to the designated credit card.
   3. Where Compono invoices the Client, the Client agrees to pay all Fees within 14 days of the date of the invoice by such payment means as agreed between the Parties.
2. GST
   Unless expressly included, fees or other similar amounts referred to in this Agreement exclude GST. Words and expressions used in this Schedule which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and legislation of a State or Territory that is enacted to replace or supplement that Act. If GST is payable by a party on any supply made under this Agreement, the recipient will, upon receiving a tax invoice from the supplier, pay to the supplier an amount equal to the GST payable on the supply.