Terms of Use

1. Agreement

These Product Use Terms (Agreement) form a legal agreement between RadiusCore Ltd ("RadiusCore") and you.

This Agreement may be accepted by doing either one or more of the following:
• signing these Product Use Terms or accepting a clickthrough agreement; or
• accessing or otherwise using the RadiusCore Software.

If you do not agree with these terms, or do not understand any part of this Agreement, you should not access or otherwise use RadiusCore's software.

2. Meaning of words

Where the following words are not already defined in another part of this Agreement:

"Business Day" carries the same meaning as is given to that term in the Banking Act 1959 (Cth), as amended from time to time.

"Commencement Date" means the date of acceptance in accordance with clause 1 above.

"Confidential Information" means the content of this Agreement, the RadiusCore Software (including all content and formulas contained therein), any information of a party which is marked confidential and any information which is by its nature confidential.

"Data" means any information inputted into the RadiusCore Software by you from time to time.

"Fees" means the ongoing monthly subscription fee payable by you to RadiusCore.

"Intellectual Property Rights" means all intellectual property rights at any time protected by statute or common law, including patents, copyright and any registered intellectual property rights, registered designs, trademarks and goodwill; and any application or right to apply for registration of any of these rights.

"Term" means the period commencing on the Commencement Date, and ending on the date this Agreement is terminated in accordance with clause 3.

"RadiusCore Software" means the RadiusCore Excel addon and any associated Excel templates (i.e., Workpapers) developed by RadiusCore in Microsoft Excel.

"you" or "your" means you the licensee and any user(s) of the RadiusCore Software permitted by RadiusCore from time to time.

3. Term and termination

This Agreement will commence on the Commencement Date and will end upon termination by a party in accordance with this Agreement.

Either party may terminate this Agreement immediately by giving the other party notice if the other party breaches any provision this Agreement and fails to remedy the breach within 30 days of receiving written notice of the breach.

RadiusCore may also terminate this Agreement immediately by giving you written notice if you attempt to assign any of the rights arising out of this Agreement to a third party or if in RadiusCore’s opinion you are or may be subject to any form of insolvency administration, proceedings, or other external administrator, liquidator, receiver or manager is appointed.

On termination for whatever reason, all your rights to use the RadiusCore Software cease and you must immediately cease use of the software and delete or destroy any master copies of the RadiusCore software, including any associated Excel templates (i.e., Workpapers).

4. Fees

You must pay to RadiusCore the Fees prior to the Commencement Date.

The Fees are exclusive of GST.

If any GST is imposed on any supply made under this Agreement, then the party making the supply will collect from the recipient, in addition to any consideration due for the supply, an amount equivalent to the GST payable on that supply.

If the recipient of the supply is required to pay an additional amount for GST pursuant to this clause, then the recipient will pay the increased amount in the same manner and at the same time as the consideration, which may be due under this Agreement.

If you dispute the whole or any part of the amount claimed in an invoice submitted by RadiusCore pursuant to this Agreement, you will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this Agreement.

5. The rights RadiusCore grants you

Subject to your compliance with this Agreement and in consideration of the payment of Fees, RadiusCore grants you a non-exclusive, non-transferable, non-sublicensable licence to use and access the RadiusCore Software during the Term in accordance with this Agreement.

6. Your Responsibilities

You must ensure that:
(a) your employees and contractors are made aware of the terms of this Agreement;
(b) you have conducted your own due diligence in respect of the RadiusCore Software and made your own assessment as to their accuracy and suitability, including (without limitation) the accuracy and efficacy of any formulas contained in the RadiusCore Software; and
(c) you notify RadiusCore immediately if you identify any error in the RadiusCore Software or an update which may be required.

You must not:
(a) provide the RadiusCore Software to any person other than employees and must ensure your employees do not provide the RadiusCore Software to any third party; and
(b) upload or submit any information to the RadiusCore Software where you know, or ought be aware, that the information is incorrect, untrue, misleading or materially incomplete.

You acknowledge that the rates and formulas contained in the RadiusCore Software:
(a) are to be considered examples only based on the current financial year and must be reviewed and updated by your team as required; and
(b) may become obsolete on the enactment of any relevant legislative amendments or the commencement of a new financial year.

7. RadiusCore Responsibilities

While RadiusCore makes all reasonable efforts to ensure the RadiusCore Software is error-free, RadiusCore does not warrant the validity or accuracy of the RadiusCore Software.

RadiusCore will not be liable for any delayed, partial or total non-performance of the RadiusCore Software arising directly or indirectly from any event outside of RadiusCore’s control, including a failure by you to comply with any of your obligations.

8. Third Party Software

The RadiusCore Software may include, be bundled with, or require installation of other software programs licensed by a third party.

Use of any software programs accompanied by a separate licence agreement is governed by that separate licence agreement.

RadiusCore is not responsible for any third party’s software and shall have no liability for your use of the third-party software.

9. Additional Services

You may request additional services, including bespoke customisation to the scope or functionality of the RadiusCore Software (including legislative amendments), training on the use of the RadiusCore Software or ongoing support queries, by providing written notice to RadiusCore via email (Additional Services).

RadiusCore may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for RadiusCore to undertake the Additional Services.

If you agree to the scope of services, proposal or statement of work (as applicable), for the Additional Services, then RadiusCore will provide the Additional Services to you in consideration for payment of an additional fee, which will form part of the Fees.

10. Use of Names

You must not without RadiusCore's written permission use the name, any trademark or logo associated with the RadiusCore Software or RadiusCore in any external communication by you

11. Risk and Ownership

All rights title and ownership in the RadiusCore Software (including all Intellectual Property Rights contained within the RadiusCore Software, but excluding the Data you upload into the RadiusCore Software) shall at all times vest with RadiusCore (including without limitation any modifications or developments made to the RadiusCore Software either by RadiusCore or by you with or without the consent of RadiusCore).

Nothing in this Agreement grants you ownership of the RadiusCore Software or any other rights in respect of the RadiusCore Software other than those expressly granted in clause 4.

You must not remove or alter any logo, copyright or other proprietary notices, symbols or labels appearing in any of the user interfaces of the RadiusCore Software.

Risk of use of, loss of or damage to the RadiusCore Software will pass to you on and from the Commencement Date.

12. Intellectual Property Rights

Any pre-existing Intellectual Property Rights owned by you or RadiusCore before the commencement of this Agreement, will remain vested in you and RadiusCore respectively.

You agree to grant to RadiusCore a non-exclusive, non-transferable, single licence to use your pre-existing Intellectual Property Rights to the extent that use relates to the performance of RadiusCore’s obligations under this Agreement.

Subject to any Intellectual Property Rights existing in any third-party materials or those existing in Data entered into the RadiusCore Software by you, all Intellectual Property Rights relevant to the RadiusCore Software, created by RadiusCore on or after the Commencement Date will remain vested in RadiusCore.

If either party’s pre-existing Intellectual Property Rights contain the Intellectual Property Rights of a third party, then that party is responsible for, and must obtain all necessary licences, permits and authorisations and pay all necessary fees and royalties to use the material or those rights.

13. Your rights and additional responsibilities

You may use the RadiusCore Software strictly in accordance with the terms of this Agreement only.

You will be responsible for protecting the RadiusCore Software from unauthorised access or use.

You must not copy, modify, reverse engineer, decompile or disassemble the RadiusCore Software. You must not distribute, sell, sub-license or otherwise make the whole or part of the RadiusCore Software available for use by a third party.

You must not use or distribute any part or whole of the RadiusCore Software in conjunction with any product or service for commercial gain unless expressly consented to by RadiusCore in writing and you acknowledge RadiusCore’s proprietary rights over the RadiusCore Software.

You must not incorporate the RadiusCore Software in any product to be made available commercially unless expressly consented to by RadiusCore in writing on terms acceptable to RadiusCore in its absolute discretion.

You must not use privileged knowledge or observations of RadiusCore Software operation and controls gained by virtue of your access to the RadiusCore Software to create or assist in creating a competitor product or one that duplicates to a large degree the functionality of the RadiusCore Software.

14. RadiusCore limits its Liability

You are responsible for determining that the RadiusCore Software are suitable for your own use or purpose.

You understand and agree that RadiusCore are not engaged in the supply of professional services to you or your clients and that the RadiusCore Software are:
(a) a secondary tool only;
(b) provided for your convenience and efficiency of compilation purposes only; and
(c) not a substitute for the professional judgment of you and your employees.

It is solely your responsibility to consider any information provided by RadiusCore in the context of the facts you are applying that information to and to review and confirm all information in reports, outputs or other documentation created in connection with the RadiusCore Software before relying on, distributing or signing off on such reports, outputs or other documentation.

You agree to develop and maintain an internal review process for the review of all reports, outputs and other documentation generated in connection with or using the RadiusCore Software.

You acknowledge and agree that the accuracy of anything generated in connection with any RadiusCore Software will be affected by your selections, inputs, individual client instructions, your compliance with our instructions and any user manual (or similar) provided by RadiusCore from time to time.

You assume all risk for any loss or damage resulting directly or indirectly from your use of or inability to use the RadiusCore Software.

To the extent permitted by law, RadiusCore will not be liable to you in respect of any consequential, indirect, exemplary or punitive damage (including, but not limited to, loss of actual or anticipated profits or revenues, loss by reason of shutdown or non-operation, increased cost of borrowing, capital or financing, or loss of use or productivity, etc.) whether caused by or in relation to breach of contract, warranty, tort, product liability, contribution or strict liability, whether arising under this Agreement, at law or in equity.

The above clause does not apply to RadiusCore’s liability in respect of:
(a) fraud or wilful misconduct; and
(b) liability for infringement of Intellectual Property Rights.
To the extent permitted by law, RadiusCore’s aggregate liability for any claims made under or in connection with this Agreement will be the Fees paid by you to RadiusCore during the Term of the Agreement.

Where any statute or law implies warranties or conditions into this Agreement, which cannot be lawfully modified or excluded under this Agreement (Non-excludable Condition) then this Agreement will be read subject to such Non-excludable Condition. Where such statute or law permits, RadiusCore limits its liability to you for breach of such Non-excludable Condition to re-supplying access to the RadiusCore Software.

Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against all liability, loss, cost or damage caused by any of the following:
(a) breach by the Indemnifying Party of this Agreement;
(b) any claims arising out of or in any way related to an injury to or death of any person or loss of or damage to any tangible property arising out of or in any way relating to this Agreement and caused by the Indemnifying Party’s act or omissions; and
(c) any claim by a third party arising out of or in any way related to the Indemnifying Party’s wilful, negligent or unlawful act or omission,
provided however that the Indemnifying Party’s liability under this clause is reduced proportionately to the extent that any negligent act or omission of the Indemnified Party contributed to the liability.

15. RadiusCore makes no Warranties or Representations

Except as expressly provided in this Agreement and to the extent permitted by law, liability for all representations and warranties, whether implied, express or otherwise, are excluded.

Except as expressly warranted above, RadiusCore does not warrant or make any representations:
(a) that the RadiusCore Software are of merchantable quality, suitable for your use, or are fit for any other purpose or use;
(b) that operation of the RadiusCore Software will be-uninterrupted or that the RadiusCore Software are error-free;
(c) regarding the results of any use of the whole or any part of the RadiusCore Software; or
(d) as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the RadiusCore Software.

Except as expressly provided above, and to the extent permitted by law, liability for all representations and warranties, whether implied, express or otherwise, are excluded.

16. Data

You acknowledge that the Data contains information which may be protected under the Privacy Act 1988 (Cth) as amended from time to time (Privacy Act) and agree to protect and otherwise deal with such Data only in accordance with the Privacy Act.

17. Confidential Information

A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

A party will not be in breach of this clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.

Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.

Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

18. Force Majeure

A Force Majeure event means anything outside reasonable control of a party, including but not limited to:
(a) power, data or communication outages;
(b) acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
(c) a transportation embargo;
(d) industrial action (including a picket); and
(e) any legislation or regulation and any action or inaction of any government or government agency.

If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money then:
(a) as soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations, the date of commencement of non-performance and the means proposed to be adopted to remedy or abate; and
(b) that party’s obligation to perform will be excused for the duration and to the extent of the delay arising directly out of the Force Majeure event of which notice is given under this clause.

19. Resolving Disputes

In any dispute arising out of or in connection with this Agreement, both parties agree to first negotiate in good faith with the other party to resolve it.

If the dispute is not resolved by those negotiations within thirty (30) days, you agree that the matter may be referred to the Australian Commercial Dispute Centre Limited (ACDC) for resolution by mediation and if necessary, by arbitration in accordance with the Conciliation Rules of the ACDC.

20. Notices

All notices which are required to be given under this Agreement will be in writing and will be sent to the address of the recipient as may be set out in this Agreement or such other address as the recipient may designate by notice given in accordance with this clause.

Any notice may be delivered by hand, by pre-paid letter, facsimile or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or on transmission by the sender (if sent by facsimile) or upon receipt of delivery confirmation or “read receipt” by the sender (if sent by email).

21. Survival

Clauses 11, 12, 16, 17, 19 and this clause will survive the termination or expiry of the other provisions of this Agreement.

22. General

This Agreement is governed by and construed in accordance with the laws of New Zealand.

This Agreement overrides the provisions of any other documentation that you may issue in relation to the RadiusCore Software.

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of both parties.

You must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of RadiusCore. RadiusCore may assign any rights or benefits under this Agreement without your prior written consent. You must do all things and sign all documents to give effect to any assignment by RadiusCore.

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

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