1.1. These Terms and Conditions apply to the services Catalyst Technologies ACN 622 816 559 (“we”, “our” or “us”) provide to you through the CQCommand, iluminr and/or Activate platforms and any other platform accessible through our website located at www.catalysttech.co (“Site”) or our mobile apps, including but not limited to the Community Portal accessible at https://community.catalysttech.co/.
1.2. We offer the following platforms:
2.1. In this Agreement:
“Access Fee” means our fee for the Platform payable by you in accordance with the fee schedule set out on the Fee Proposal (which Catalyst Technologies may change from time to time on notice to You).
“Account” means your account with us that facilitates your use of the Platform;
“Activate” means the platform of that name described in clause 1.2(b);
“Agreement” has the meaning in clause 1.3;
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act
“Authorised User” means those of your employees, agents and contractors who are authorised by you to use the Platform;
“Business Day” means 9:00am – 5:00pm Monday to Friday, excluding Saturdays, Sundays and public holidays in New South Wales, Australia;
“Consumer Guarantee” has the meaning given in Division 1 of Part 3-2 of the Australian Consumer Law;
“Consultants” means any employees, contractors, agents or consultants that we use to provide the Platform and/or perform the Services;
“CQCommand” means the platform of that name described in clause 1.2(a);
“Customer” means the person or legal entity listed on the Fee Proposal and includes anyone acting on their behalf or with their express or implied authority;
“Customer Data” has the meaning in clause 10.5;
“Deliverable” has the meaning set out in clause 5.1;
“Developed IP” is defined in clause 10.3;
“Fee Proposal” has the meaning set out in clause 3.1;
“Freemium” has the meaning in clause 6.1
“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;
“Material” means any information, data, source codes, drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Site, or otherwise displayed, uploaded or published on, or via, the Site;
“Platform” means any platform described in clause 1.2;
“Premium” has the meaning in clause 6.2;
“Privacy Laws” means the Privacy Act 1988 (Cth) and the General Data Protection Regulation (EU 2016/679) (as applicable);
“Provider IP” is defined in clause 10.2;
“Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth);
“Services” means the services that we may provide you, as listed in clause 5.1;
“Site” has the meaning in clause 1.1;
“Support Services” means those services described in clause 5.1;
“Term” means the term of this Agreement beginning when you sign a Fee Proposal and create an Account and continuing until your Account is terminated in accordance with clause 16; and
“you” or “your” means the person or entity accessing, using a Platform and includes, when applicable, the Customer.
2.2. Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa. Paragraph headings are for reference purposes only and all references to clauses are to clauses in this Agreement unless otherwise specified.
3. Platform Set Up and Account
3.1. We will prepare a fee proposal for each Customer that sets out:
3.2. To access a Platform, you must first:
3.3. If you do not provide accurate and complete details, we may not be able to activate your Account, provide you with access to the relevant Platform or the Services. You agree to keep your Account details current at all times by updating these details via your Account on the Site or by contacting us at email@example.com.
3.4. You will receive an email confirming registration with us shorty after you have created your Account.
3.5. You may determine who is an Authorised User and the level of access they have to the Platform. You can revoke or change the access of an Authorise User at any time via the Platform.
3.6. You must not hold more than one Account at the same time.
3.7. You warrant and represent that your access to, or use of, the Platform is not unlawful or prohibited by any laws which apply to you. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
3.8. You agree that you have sole responsibility for any activity that occurs on or using your Account. You agree to notify us immediately if you become aware of any security breach or any unauthorised use of your Password or Account.
3.9. We may, in our absolute discretion, terminate your Account, disable your Account or restrict your access to the Platform or Site (temporarily or permanently) where you have breached the Agreement or for any reasonable reason and at any time. Under these circumstances, you may be prevented from accessing all or parts of the Platform, Site, your Account details or any other content associated with your Account. We will not be liable to you or any third party if this occurs. We may impose limits or restrictions on the use you may make of the Site. Further, we may, for any reason, at any time and without notice to you, withdraw the Site, or change or remove Site functionality.
4. Use of the Platform
4.1. You may not use a Platform other than for its intended purpose as set out in clause 1.2 or otherwise communicated to you.
4.2. You will not, and you will ensure the Authorised Users will not:
4.3. If you use any communication tools available through the Platform (such as any forum, chat room, SMS or message function), you agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the purpose of the Platform, including (but not limited to):
and you must procure that your Authorised Users do not do so.
4.4. When you make any communication via the Platform, you represent that you and/or your Authorised Users are permitted to make such communication. We are under no obligation to ensure that the communications on or via the Platform are legitimate or that they relate only to the use of the Services. As with any other web-based system, you must exercise caution when using the communication tools available on the Platform.
4.5. We reserve the right to remove any communication from the Platform at any time and in our sole discretion.
4.6. All rights granted to you under this Agreement must not be leased, assigned, sold, licensed, resold or transferred to any third party in any manner whatsoever. You must not in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Platform.
4.7. Any breach of this clause 4 constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Platform or the Services, and/or take further actions against you for breach of this Agreement.
5.1. Once your Account is set up, we will provide you with the services and deliverables as set out in your Fee Proposal. These services may include:
|Platform Maintenance (including hosting and security)||Access to and use of the Platform.|
|Onboarding||As set out in the relevant Fee Proposal.|
|Training||As set out in the relevant Fee Proposal.|
|SMS Services||As set out in the relevant Fee Proposal.|
|Support Services||As set out in the relevant Fee Proposal.|
|APIs||As set out in the relevant Fee Proposal.|
|Customisation||You may contact us to request specific customised functionality. Such customisation will be provided at our discretion and will incur additional charges.|
the “Services” and “Deliverables” respectively.
5.2. All Services will be performed online. At our discretion, onboarding and training may be conducted on site at your premises.
5.3. We will perform the Services and deliver the Deliverables in return for payment of the applicable Charges.
5.4. All Services and Deliverables will be provided based on the information and specifications supplied by you. All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us or any third party. It is not within the scope of our obligations to enquire as to, or to verify, the accuracy or completeness of information that we receive from you or any third parties.
5.5. We are not obliged to provide any Services or Deliverables under this Agreement that are not described in this Agreement.
5.6. We will use reasonable endeavours to provide the Services and Deliverables promptly or by any applicable agreed date.
5.7. We may engage Consultants to perform our obligations under this Agreement at our discretion.
5.8. We intend for the Services (other than training and onboarding) to be available 24 hours a day, seven days a week. However, on occasions the Services or the Platform may be unavailable to permit maintenance or other development activity to take place. We will use reasonable endeavours to publish details of any significant interruptions (as determined by us in our discretion) in advance on the Site.
6. Freemium and Premium Access
6.1. At our discretion, we may offer you free access to components of certain Platforms (“Freemium”).
6.2. Freemium access will be subject to limited functionality and volume thresholds. Once the requisite volume thresholds are reached for Freemium access, you will need to upgrade to the paid version of the Platform (“Premium”) to continue your use of the Platform.
6.3. Premium versions will provide access to key features of the Platform and include an additional volume capacity. Details of the features, volume thresholds and Charges of the Premium access will be set out in your Fee Proposal.
6.4. We may amend, vary or cancel any Freemium access at any time.
7. Support Services
7.1. In the case of technical problems, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, please check the support provided online at the Site or failing that email us at firstname.lastname@example.org.
7.2. Subject to clause 18 and clause 5.8, we will make commercially reasonable efforts to keep the Support Services operational twenty-four (24) hours a day and seven (7) days a week.
7.3. We will investigate all problems or errors in any Services or Deliverables, provided that you notify us in writing within three (3) days following discovery of the problem and you give us all necessary information to conduct an investigation into the matter.
8. Your obligations
8.1. You acknowledge that our ability to be able to provide the Platform and the Services to you without delay or interruption is dependent on your full and timely cooperation. You will (and will ensure that the Authorised Users will):
8.2. You must procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Platform or the Services to you.
8.3. It is your responsibility to ensure that the Fee Proposal, invoice or any other written communications we send to you set out the correct information in relation to your business and that you notify us of any changes to this information during the Term.
9. Charges and Payment
9.1. You will pay us the Charges to access and use the Platform and the Services in accordance with this Agreement and the Fee Proposal.
9.2. The Charges will be set out in the Fee Proposal and may include:
9.3. Unless stated otherwise, the Charges are exclusive of GST and are in Australian Dollars. We may decide to set out the Charges in any local currency as we deem appropriate. Any currency that is not in Australian Dollars will be clearly identified in the Fee Proposal.
9.4. If payment of the Charges is not received by any due date described in a tax invoice provided to you, we will be entitled (without prejudice to any other right or remedy available to us under this Agreement or at law) to do one or more of the following:
9.5. You will make all payments for the Charges without any deduction for tax unless a tax deduction is required by law. If you are required to make a tax deduction by law, the amount due will be increased to the amount that (after making the tax deduction) upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.
9.6. We may, at any time during the Term, increase the Charges by providing you with 30 days’ prior written notice. If you do not agree to these changes, you may terminate the Agreement by giving us sixtey (60) days’ written notice no later than fourteen (14) days after the date you received written notice of the changes.
9.7. Invoices and subscription payments may be managed through Chargebee. Such payments are subject to the Chargebee Terms of Service. By using our Services, you agree to be bound by the Chargebee Terms of Service, which may be modified by Chargebee from time to time. As a condition of enabling subscription services through Chargebee, you agree to provide us with accurate and complete information about you and your business, and you authorise us to share with Chargebee your identification and transaction information related to your use of the services provided by Chargebee.
9.8. Payments may be processed by Stripe and such payments are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By using our Services, you agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of enabling payment processing services through Stripe, you agree to provide us with accurate and complete information about you and your business, and you authorise us to share with Stripe your identification and transaction information related to your use of the payment processing services provided by Stripe.
10. Intellectual Property
10.1. Subject to clauses 10.2 and 10.3, we grant you a non-exclusive, non-transferable and revocable license to permit the Authorised Users to access and use the Platform and the Services (including the Intellectual Property Rights contained therein) throughout the world during the Term.
10.2. All rights, title or interest in and to the Platform, and any information or technology that may be provided to, or accessed by, you in connection with your use of the Platform or Services is owned, and will remain owned, by us or our licensors (“Provider IP”). Using the Platform or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP.
10.3. All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Platform or the provision of any Services will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP (collectively, the “Developed IP”).
10.4. You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Platform, the Provider IP and/or the Developed IP.
10.5. You retain ownership rights to data and content that you provide to us, whether by uploading to the Platform or otherwise (“Customer Data”).
10.6. By uploading, posting, transmitting or otherwise making available any Customer Data to the Platform, you:
10.7. We reserve the right to terminate any licence granted to you under the Agreement and/or remove any of Customer Data from the Platform, at any time, for any reason and without notice to you.
10.8. You must maintain copies of all Customer Data you input into the Platform. We adhere to best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but we do not make any guarantees that there will be no loss of the Customer Data. We expressly excludes liability for any loss of Customer Data no matter how caused.
10.9. If you enable third-party applications for use in conjunction with the Platform, you acknowledge that we may allow the providers of those third-party applications to access your Customer Data as required for the interpretation of such third-party applications with the Platform. We are not responsible for any disclosure, modification or deletion of your Customer Data resulting from any such access by third-party application providers.
10.10. You agree that we may refer to you, your business name, publish your logo and/or trade mark and make reference to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business.
11.1. You warrant that where you have registered an Account and to use the Platform on behalf of another entity, you have the authority to agree to this Agreement and make the warranties contained in this Agreement on behalf of that entity and can do so without the consent of any other entity.
11.2. We will use reasonable endeavours to provide constant, uninterrupted access to the Platform and the Services, but with any Platform based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Platform or the Services.
11.3. To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Platform provided hereunder is given or assumed by us other than as required at law. You acknowledge and agree that the Platform and the Services are provided on ‘as is’ basis and that you will make your own investigations into whether or not the Platform and the Services are fit for your purposes.
11.4. We make no representations, warranties or guarantees:
12. Liability and Exclusions
12.1. To the maximum extent permitted by law, we exclude all conditions, guarantees or warranties expressed or implied by law arising out of, or in connection with, access and/or use of the Platform, the Site, or any Services performed under this Agreement.
12.2. In no event will we be liable to you or any third party for any:
12.3. Without limiting the generality of the foregoing, our total liability to you or any third party (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to the total Charges paid (excluding GST and expenses) by you to access and use the Platform and the Services (as applicable) in the twelve (12) months immediately prior to the event(s).
12.4. You assume sole responsibility for your use of the Platform and the Services (including any content contained therein) and for any reliance on, and use of, conclusions drawn from such use.
12.5. We will have no liability for any losses suffered or any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Platform, the Services or any actions taken by us at your direction.
12.6. The Site may contain links to third party websites. Any links to such websites provided on the Site are for convenience only. We do not represent that we have any relationship with any linked websites nor recommend or endorse any goods, services or third party content appearing on, or via, other websites linked to this Site. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using and/or accessing third party websites.
12.7. To the maximum extent permitted by law, all typographical, clerical or other errors or omissions in sales literature, quotations, price lists, acceptances or offers, invoices or other documents or information issued by us will be subject to correction without any liability on our part.
12.8. The parties acknowledge that the limitations of liability contained in this clause 12 are a fair and reasonable allocation of the commercial risk between the parties.
13.1. You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees and contractors (collectively, the “Indemnified”) harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified or which the Indemnified must pay, sustain or incur as a direct or indirect result of or arising out of:
14.1. Each party agrees not to use or disclose confidential information received or disclosed to it by the other party in the negotiation or operation of this Agreement, save for such use or disclosure necessary and required to perform their respective obligations under this Agreement. Disclosure will be, in any event, only made to the receiving party’s employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party’s obligations.
14.2. In making disclosure to persons as permitted under this clause 14, the receiving party will ensure that persons receiving the disclosing party’s confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.
14.3. Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the disclosing party, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.
14.4. Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.
15.1. You must, in connection with this Agreement:
16. Term and Termination
16.1. This Agreement will commence on the date you sign the Fee Proposal and will continue in force until your Account is terminated in accordance with this clause 16 (“Term”).
16.2. We may terminate this Agreement (or at our discretion, the supply to you of the Services or access to the Platform) immediately if you fail to pay any invoice and such sum remains unpaid for fourteen (14) days;
16.3. Subject to clause 18, either party may terminate this Agreement immediately by giving written notice to the other party if:
16.4. On termination of this Agreement for any reason, we will be entitled to immediate payment for all Charges properly incurred up to the date of termination and during any applicable notice period. Access Fees will be accrued on a pro rata basis until the termination date.
16.5. On the termination or expiry of this Agreement, you will return all of our confidential information, Provider IP, Developed IP and any other property belong to us in your possession, control or custody.
16.6. To the maximum extent permitted by law, we will not provide you with a refund of the Charges (including any refunds for pre-paid fees) where:
17.1. You will not attempt to employ, either directly or indirectly or as consultants, any of our Consultants during the term of this Agreement without our prior written consent. If you are in breach of this clause, we will be entitled to terminate this Agreement in accordance with clause 16.
18. Situations or events outside our reasonable control
18.2. If we are prevented from or hindered in performing our obligations under this Agreement due to an event outside our control,
18.3. Situations or events referred to in clause 18.1 include, but are not limited to:
18.4. If non-performance or delay in performance of this Agreement persists in accordance with this clause 18 for 3 or more months, then you may terminate this Agreement by giving 14 days’ prior written notice to us.
19.1. Any notice required to be given pursuant to this Agreement will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in this Agreement (or to such other address as either party may from time to time notify the other in accordance with this clause).
19.2. A notice given under clause 19.1 will be deemed to have been delivered 24 hours after the email is sent.
20. Dispute Resolution
20.1. The parties must, before resorting to court proceedings (except for interlocutory or interim relief), initially refer any dispute under or relating to this Agreement to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within 20 days, then either party may, in its absolute discretion, initiate court proceedings.
21.1. We reserve the right to make changes to this Agreement without notice to you. Any amendments to this Agreement will have immediate effect from the time that they are published on the Site.
21.2. Although we do our best to provide the most up-to-date information on the Site as this becomes available, we cannot warrant the accuracy or completeness of the information provided.
21.3. The provisions of this Agreement that are capable of having effect after the termination or expiry of this Agreement will remain in full force and effect following the termination or expiry of this Agreement.
21.4. Any provision of this Agreement which is void or unenforceable may be severed from this Agreement without affecting the enforceability of other provisions.
21.5. A failure or delay by us to exercise a power or right under this Agreement does not operate as a waiver of that power or right, and the exercise of a power or right by us does not preclude our future ability to exercise that or any other power or right.
21.6. This Agreement is governed by, and must be construed according to, the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction there.
Last updated on 17th November, 2020