End-user License Agreement

(Updated as of 13 March 2024)

1. Definitions and Interpretations
1.1 Definitions
In this Agreement unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: an account enabling the Client and an Authorised User to access and use the Solution.
(b) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Address for Service: the email address for each party as set out in the Schedule, or such other address for service advised by the party to the other party in writing from time to time.
(d) Agreement: this Software Licence and Service Agreement and the Schedule and attached Annexures and any amendments to this Agreement from time to time.
(e) Applicable Laws: any laws governing or affecting the arrangements contemplated by this Agreement.
(f) Authorised User: such persons authorised to use the Solution in accordance with the Schedule and this Agreement.
(g) Billing Cycle: means the period of time which the Client has paid for their Solution upfront and is by default monthly unless otherwise specified in this agreement;
(h) Client Data: all data, files, works and materials uploaded to or stored within the Solution (or a connected database) by the Client (or Authorised Users), transmitted by the Solution at the instigation of the Client (or Authorised Users), or supplied by the Client (or Authorised Users) to the Provider for transmission by or storage within the Solution.
(i) Commencement Date: the earlier of the date set out in the Schedule or the date that this Agreement becomes binding on the Client.
(j) Confidential Information: of a party means all information (in any form):

(i) that concerns a party's business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes), including:

A. the Client Data (this is the Client’s Confidential Information);
B. the information regarding pmo365 including (the operation and structure of the Services, the Solution and Materials, information or data, source codes and other information technology relating to the Solution and Materials, pricing, quotes, proposals, training materials and technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with pmo365) (this is the Provider’s Confidential Information); and

(ii) includes this Agreement (as far as they are not publicly available),
but does not include information that becomes publicly available without breach of this Agreement.

(k) Corporations Act: the Corporations Act 2001 (Cth).
(l) DevOps Services: means the DevOps Services as described in Annexure A and in the quantity based on the number of business days in any given month (calculated in accordance with Annexures A and B).
(m) End User Licence Agreement: the End User Licence Agreement which applies to all Authorised Users of the Solution as published on the Provider’s website or otherwise provided by the Provider to the Client and amended from time to time.
(n) Sprint: has the meaning given to it in Annexure A.
(o) Story Points: the points calculated in accordance with clause 2.3 and available to the Client in each Sprint, calculated as per Annexure A.
(p) Subscription Fees: the subscription fees payable by the Client to the Provider for the subscription to pmo365 in accordance with clause 6, including any other fees set out in Schedules, annexures or otherwise payable by the Client to the Provider under this Agreement.
(q) Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):

(i) strikes, lock-outs or other industrial action;
(ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19), health emergencies, disease, or other natural disaster;
(iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(v) interruption or failure of utility services (including the inability to use public or private telecommunications networks);
(vi) interruption of networks or third party services (including telecommunication or web services); and
(vii) the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however does not include a lack of funds.

(r) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(s) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(t) Insolvency Event:

(i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
(ii) a liquidator or provisional liquidator is appointed in respect of a person;
(iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
(iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
(v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
(vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

(u) Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
(v) Licence: means the licence to use the Solution granted by the Provider to the Client in accordance with clause 3.1(a).
(w) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(x) Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Client by the Provider at any time.
(y) Personnel: the directors, officers, employees, contractors, suppliers, Authorised Users, advisers or agents of a party.
(z) Policy: means any policy of the Provider in place from time to time.
(aa) Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
(bb) Privacy Policy: means the privacy policy of the Provider as made available on the Provider’s website.
(cc) Related Entity: has the meaning given in section 9 of the Corporations Act.
(dd) Schedule: means the Schedule(s) as attached to these terms and conditions.
(ee) Services: means any services that the Provider provides to the Client, as defined under clause 2.1.
(ff) Service Level Agreement: the Service Level Agreement for the Solution as contained in the Services Catalogue (or otherwise provided by the Provider to the Client) and as amended from time to time.
(gg) Services Catalogue: means the specifications document which details the Services being delivered by the Provider to the Client. The Services Catalogue will be provided to the Client prior to the commencement of the Client’s subscription to pmo365 (as defined below).
(hh) Solution: means the solution that the Provider provides to the Client, as defined under clause 2.1.
(ii) State: New South Wales.
(jj) System: means the Client’s system and IT infrastructure that will host the Solution.
(kk) Term: means the term of this Agreement, commencing on the Commencement Date and ending on the date that they are terminated in accordance with this Agreement.

1.2 Interpretation
In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.
(c) References to parties are references to the parties to this Agreement.
(d) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h) A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.
(j) A reference to a law includes:

(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(v) Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(w) This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.
(x) A reference to writing or written includes email.
(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. Subscription to pmo365^TM
2.1 The Provider provides a complete Project Portfolio Management (PPM) solution called pmo365TM (pmo365) that is based on Microsoft technologies and comprises the pmo365 Solution (Solution) and the pmo365 Services (Services) set out in Annexure A.
2.2 The Provider provides a number of different subscription levels to pmo365, the inclusions in each subscription level are set out in Annexure A. The Client’s subscription to pmo365 will continue month-to-month for the Term and provides the Client with access to the provision of Services during the Term, with the level of support and services provided based on the subscription level chosen by the Client as indicated in the Schedule; and
2.3 The Provider also offers DevOps Services under some of its offerings under Sprints as detailed in Annexure A. If the Client is entitled to receive DevOps Services, then the Client acknowledges and agrees that:

(a) the Provider will assess at the commencement of a relevant Sprint, acting reasonably and based on the complexity, work and risk involved in a Client’s Sprint, how many User Story Points will be consumed as a result of the Sprint.
(b) the Client cannot use more User Story Points than they have been allocated under their Subscription Level for each sprint.
(c) In the event the Client’s user stories for a sprint, exceed the User Story Points in connection with their Subscription Level, the Client should prioritise the user stories within the allocated User Story Points.

2.4 This Agreement shall commence on the Commencement Date and continue until it is terminated in accordance with its terms (Term).
2.5 The Client may make changes to its subscription level to pmo365 on providing 30 days’ written notice to the Provider. Where the change requires payment of additional Subscription Fees, then the Client must pay such additional Subscription Fees as specified by the Provider prior to the changes will be made to the Client’s subscription.

3. Licence
3.1 Grant of Licence
(a) Subject to the terms of this Agreement and in consideration of the Subscription Fees paid by the Client to the Provider in accordance with clause 5, the Provider grants the Client a non-exclusive, non-transferable, non-assignable Licence to use the Solution, in accordance with this Agreement.
(b) The Licence granted provides the Client with access to use the Solution for its Authorised Users only and is subject to any restrictions and limitations as stated in the Schedule. For purposes of this clause, use of the Solution will be restricted to use in the provided form for the purpose of processing the Client’s data for the normal business purposes of the Client. Unless otherwise agreed, the Provider will facilitate the install of the Solution on the Client’s Systems in accordance with the Schedule.
(c) All Authorised Users of the Solution must agree to and will be bound by the End User Licence Agreement, and the Client is solely responsible for ensuring that they do so, and is solely responsible for all actions and omissions of all Authorised Users (and any other person that uses the Client’s access). In the event the Client, or any Authorised Users do not agree to the End User Licence Agreement, they must not use the Solution.
(d) The Client is solely responsible for ensuring its Authorised Users comply with the provisions of this Agreement, and a breach by any of the Authorised Users of this Agreement, will be deemed to be a breach by the Client. Any licence granted to Authorised Users is solely while they are an employee of the Client (or authorised by the Provider). Upon their cessation, their licence to access the Solution immediately ceases and the Client is responsible for terminating their access.
(e) The Client is strictly prohibited from granting access to the Solution including any database to any other person (apart from Authorised Users) and must ensure that no competitor of the Provider gains access to or use of the Solution. If a third party integration is requested, the Client must first request approval of the Provider by giving written notice to the Provider outlining the details of the third party. The Provider may grant such approval at its discretion and on any terms it sees fit. The Client is solely responsible for any actions of such third party.
(f) The licence of the solution is expressly conditioned upon the client’s maintaining an active subscription. If the client subscription becomes inactive, whether due to non-renewal, cancellation, non-payment, or any other reason, the client loses the license and shall immediately cease all use of the solution.
3.2 Access restrictions
(a) Except to the extent expressly permitted in this Agreement, the Licence granted by the Provider to the Client under clause 3.1 is subject to the following prohibitions:

(i) the Client must not sublicence, assign or novate the benefit or burden of this Licence in whole or in part to any third party (except that it is permitted to sub-license its right to access and use the Solution to Authorised Users in accordance with this Agreement);
(ii) the Client must only use the Solution as it is intended;
(iii) the Client must not directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code, underlying structure or database schema, ideas, know-how or algorithms relevant to the Solution or any software, documentation or data related to pmo365 (except to the extent expressly permitted by Provider for backups or authorised within the Solution);
(iv) the Client must not create derivative works based on the Solution (except to the extent expressly permitted by Provider or authorised within the Solution); and
(v) the Client must not make any alteration to the Solution during the Term of this Agreement. Following termination, subject to the other terms of this clause the Client is not restricted from making alterations to the Solution.

(b) The Client acknowledges that the Licence granted does not grant the Client any right to discover, or request information relating to the operation, structure or underlying source and object code of the Solution. Such information is confidential to the Provider, and the Client is strictly prohibited from accessing or attempting to access such information.

4. Account
4.1 In order to use the Solution, the Client and each Authorised User will be required to have their own Account (either by creating on the Solution or using a Microsoft 365 sign-on feature (or similar feature) to link credentials to an Account which will be assigned permissions). In using the Account, the Client:

(a) must not use false or misleading information and must update their details should they have changed from the last time they used the Solution;
(b) must follow any password policies specified by the Provider;
(c) is responsible for the security of its username and password and the Provider will assume that anyone using the Client’s (and each Authorised User’s) Account is authorised to do so by the Client and the Client is responsible for their actions. Under no circumstances will unauthorised access and use of the Client’s Account reduce the Client’s liability to the Provider;
(d) must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach; and
(e) must ensure that each Authorised User complies with the above obligations.

5. Services & Support
5.1 Services Catalogue
(a) The Provider agrees to provide the Services to the Client in the manner, frequency and times as set out in the Services Catalogue and as otherwise agreed between the parties.
(b) The scope of the Services to be provided by the Provider to the Client is as set out in the Services Catalogue (dependent on the subscription level selected by the Client detailed in Annexure A) and as otherwise agreed between the parties in accordance with this Agreement.
(c) Anything not specifically noted within the Client’s selected subscription level or specified in the Services Catalogue is not included within the Client’s subscription.
5.2 Support & Service Levels
In the event that the Provider provides the Client with a Service Level Agreement, then:
(a) subject to the other terms of this clause, the Provider will use commercially reasonable efforts to provide the Solution and the Services in accordance with the Service Level Agreement (the “Service Levels”); and
(b) the Provider provides no guarantee as to the availability and/or uptime of the Solution. The Provider will not be in breach of this Agreement if it fails to achieve the Service Levels, nor will it be liable for any Loss suffered by the Client or any other person in this regard.
5.3 Customisations, configurations and integrations
(a) The Provider is not required to perform any customisations or amendments to the Solution unless it is included in the Client’s subscription level or otherwise agreed between the parties.
(b) Where the Client’s subscription level includes such Services then should the Client require customisations, configurations and/or integrations to the Solution, then the Client may request such Services via monthly DevOps sprint cycles.
(c) The Provider reserves the right to make changes to the Solution which are necessary to comply with Applicable Laws, Government Agency requests or safety requirements.
(d) Should the Client make any customisations or amendments to the Solution itself then the Client acknowledges that unless the Provider has approved those customisations or amendments, the Customer implements those customisations or amendments so at its own risk, and any warranties provided by the Provider under this Agreement for the Solution are void, and the Provider will not be liable or responsible for any Loss caused by or connected with such customisations or amendments.
5.4 Training
The Provider is not required to provide any training on the Solution unless it is included in the Client’s subscription level or otherwise agreed between the parties.

6. Fees
6.1 Subscription Fees
(a) The Client must pay the Provider the Subscription Fee, in advance in accordance with the payment and invoicing terms set out in the Schedule. The Subscription Fee payable by the Client for their subscription to the Solution and any other charges the Client may incur in connection with their use of the Solution is as set out in the Schedule.
(b) Where the Client chooses to retain the Provider for the Solution:
(i) payment of the Subscription Fee is tiered based on the count the main Model-Driven App Users (as defined in Annexure B) each month;
(ii) the Provider will determine the count of Users each month to establish which fee band the Client is in for invoicing purposes.
(iii) the Provider will be able to see the count of Users; and
(iv) the Provider reserves the right to audit the Client’s pmo365 subscription to establish the count of Users.
(c) The Client acknowledges and agrees that the number of User Story Points available to the Client do not accrue across billing periods, and all DevOps services and User Story Points are on a ‘use it or lose it’ basis across those billing periods.
(d) The Provider may offer discounts for advanced payment in accordance with the Schedule.
6.2 Payment method
(a) Payment of the Subscription Fees is to be made via bank transfer, unless the Provider permits the Client to pay using another payment method.
(b) The Provider will provide the Client with an invoice for all Subscription Fees payable by the Client.
6.3 Overdue Payments
Where any part of the Subscription Fees or other monies payable by the Client under or in connection with this Agreement are not paid by its due date, the Provider reserves the right to charge the Client interest on the overdue amount at the rate of 10% per annum accruing daily and compounding monthly until payment is received in full.
6.4 Out-of-pocket expenses
(a) Certain out-of-pocket expenses may be incurred in the delivery of this engagement. Please note the following on expenses:

(i) no expenses will be incurred without prior written (via email) approval of Client;
(ii) any approved expenses will be invoiced for in the month in which they are incurred; and
(iii) the Provider will produce expenses receipts to support expense claims for the Client, as required.

6.5 Increase in fees
The Provider reserves the right to increase the Subscription Fee on giving the Client 30 days’ written notice. The increased Subscription Fee will take effect on the expiry of the notice period, with any part months to be increased pro-rata.
6.6 General
(a) The Client must pay all Subscription Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.
(b) The Provider may impose or deduct foreign currency processing costs on or from any payments or payouts made in currencies other than Australian dollars.
(c) All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of GST (or such other goods and services tax in the applicable jurisdiction), which will be added to those amounts and payable by the Client to the Provider.
(d) Depending on the method of payment the Client uses to pay the Subscription Fees, additional charges may be incurred (such as a credit card processing charge).
(e) All amounts paid by the Client (including any deposits) are non-refundable to the extent permitted by law.

7. Client obligations
7.1 Security & access
(a) The Client must:

(i) ensure that the Solution and the Client’s Systems are protected at all times from misuse, damage, destruction or any form of unauthorised use;
(ii) keep accurate records of use of the Solution, and permit the Provider to inspect such records at any time during the Term;
(iii) notify the Provider as soon as it becomes aware of any unauthorised access or use of the Solution by any person.

7.2 Use of Solution
(a) The Client acknowledges and agrees that it will:

(i) only use the Solution in accordance with this Agreement and any Policy; and
(ii) not use the Solution in any way that causes, or may cause, damage to the Solution or impairment of the availability or accessibility of the Solution.

(b) The Client’s use of the Solution and the Services, including the information submitted on the Solution and the Services, must not (and they must ensure that its Authorised Users use and information must not):

(i) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(ii) be in any manner which could damage, disable, overburden, or impair the Solution or interfere with any other party's use and enjoyment of this Solution;
(iii) be in any manner to phish or deceptively obtain information of other users on the Solution;
(iv) impersonate or otherwise misrepresent the Client’s identity or affiliation with any other person or entity;
(v) be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users on the Solution;
(vi) infringe any third party’s rights or violate any Applicable Laws;
(vii) contain any viruses or similar which could affect the integrity, operation or security of the Solution;
(viii) create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers;
(ix) damage the credibility or integrity of the Solution or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or
(x) interfere with or disrupt the Solution or servers or networks connected to the Solution, or disobey any requirements, procedures, policies, or regulations of networks connected to the Solution.

(i) attempt to gain unauthorised access to the Solution or computer systems or networks connected to the Solution through any means, this includes attempting to gain access to view or decompile the source code of the Solution;
(ii) commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
(iii) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses
(iv) breach or violate any of the Provider’s policies;
(v) falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Solution;
(vi) copy, store or otherwise access or use any information contained on the Solution for purposes not expressly permitted by this Agreement;
(vii) use the Solution for any purposes that are not permitted by this Agreement or in any way that is inconsistent with the purpose of the Solution, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;
(viii) attempt to circumvent payment of any fees in anyway;
(ix) tamper with, hinder the operation of or make unauthorised modifications to the Solution or any part thereof (except to the extent expressly permitted under this Agreement following the expiry or early termination of this Agreement);
(x) damage or modify the Solution or the Solution or any part thereof (except to the extent expressly permitted under this Agreement following the expiry or early termination of this Agreement); or
(xi) circumvent, disable or otherwise attempt to interfere with any security related features.

8. The pmo365 Solution
8.1 Environment
(a) The Client acknowledges that it requires the minimum specifications as set out in the Schedule to run the Solution and for the Services to operate effectively. It is the Client’s sole responsibility to ensure that it meets these minimum specifications.
(b) The Client will require Microsoft 365 licenses to operate the Solution (see Annexure B). The Client can provide such Microsoft 365 licenses itself or the Provider can supply the Microsoft 365 licenses, either temporarily or on an on-going basis. Such licenses may be deployed to Client’s own Microsoft 365 tenancy or to a dedicated tenancy provided by the Provider for the Client’s Solution, and will be supplied at the per-user-per-month prices set out in Annexure B. Invoices for the provision of any Microsoft 365 licenses supplied by the Provider will be raised monthly in arrears.

8.2 Solution new releases
(a) The Client’s Licence to the Solution granted pursuant to this Agreement includes access to the new releases of the Solution. Depending on the subscription level of the Client, the Provider may assist in updating the Solution.
(b) The Provider does not warrant that the Solution will be updated by the Provider during the Term.
8.3 Solution Maintenance
(a) Unless otherwise agreed, the Solution will at all times be installed and run from the Client’s System. The Provider is not obliged to provide the Client with the source code for the Solution or any other information in connection with the Solution that is not strictly required to enable the Client’s use of the Solution for its intended purpose (as specified by the Provider).
(b) The Client acknowledges and agrees that the Solution may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance.

8.4 End of Life
Versions of the Solution may be deemed “end of life” at the sole discretion of the Provider. Versions of Solution that are deemed “end of life” by the Provider do not include any maintenance or support services. If the Client continues to use “end of life” Solution, the Client accepts all liability for any Loss that may occur in connection with their use of the “end of life” Solution and uses it solely at their own risk. For the avoidance of doubt, the Provider will not be liable for any Loss as a result of the Client’s use of “end of life” Solution.

8.5 Third Party Integrations
(a) The Client acknowledges that the Solution will be running on the Client’s Systems and that such Systems are beyond the Provider’s reasonable control.
(b) In the event that:

(i) the Client’s System is experiencing issues or downtime; or
(ii) the Client is required to maintain an account with that third party service and fails to do so,
this may also cause the Solution to become unavailable and the Provider accepts no responsibility for any Losses or notification in this regard.

(c) Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.
(d) Where information stored in the Solution is provided by or transferred from a third party service, the Provider will not be liable for any Loss arising from the errors or omissions from the data provided by third party, or from the unavailability of the third party's service.
(e) For the avoidance of doubt, the Provider has no obligations with regards to the Solution or the Services to assist or provide any services to any third party. Any requests to or from third parties are outside of the scope of the Licence granted under this Agreement.

9. Intellectual Property Rights
9.1 The Solution and Materials
(a) The Provider shall at all times retain all title, rights and interest in and to pmo365 including:

(i) the Intellectual Property Rights subsisting in the Services, Solution and Materials;
(ii) any customisations of, modifications to, and additions to, the Services, Solution and Materials to suit the Client’s individual needs;
(iii) information or data, source codes and other information technology relating to or connected with the Services, Solution and Materials;
(iv) marketing information relating to or connected with the Services, Solution and Materials; and
(v) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Services, Solution and Materials,
However, these exclude the Client Data.

(b) No right, title and interest in any of the Services, Solution and Materials is transferred or granted to the Client except so far as expressly stated in this Agreement. The Client must not use the Solution in any way that is inconsistent with the Provider’s ownership or that is otherwise in contravention of this Agreement.

10. Warranties
10.1 The Client warrants:
(a) that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in this Agreement.

10.2 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

11. Disclaimer
11.1 The Provider provides pmo365 on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on pmo365 at its own risk and is solely responsible and liable for how they use pmo365.
11.2 Without limiting clause 11.1, the Client acknowledges and agrees that:
(a) the Provider does not warrant that the use of pmo365 will result in the Client or its Authorised Users achieving any specific result;
(a) the Solution involves computational and underlying analysis that is based on input provided by the Client and its Authorised Users. The Client is solely responsible for the reliability, accuracy and completeness of such input provided. It is the Client’s obligation to ensure that they input the correct data, and that the data is inputted by any deadlines or due dates;
(b) the Client should make their own enquiries and review and obtain their own independent advice in relation to pmo365 to ensure that it is the correct tool for their purpose before making any decision or taking action;
(b) the Client acknowledges that the Solution and data imputation is based on information provided by the Client and its Authorised Users. In light of this, the Provider takes no responsibility if the outcome of the Solution and/or the Services is inaccurate, incomplete or non-reliable because it is based on inaccurate, incomplete or non-reliable input provided by the Client and/or its Authorised Users. As the Solution and Services are based on information provided by the Client and/or its Authorised Users, the Provider excludes all liability and will not be responsible for any Loss that the Client may incur from reliance on the Solution and/or the Services;
(c) the Client is solely responsible for the projects managed within pmo365, the Provider excludes all liability in respect of such projects;
(d) the Provider makes no representations about the suitability of pmo365 for any purpose;
(e) the information provided on and in pmo365 is general information and is not in the nature of financial, legal or any form of advice. The Client should obtain advice before making any decision based on pmo365;
(f) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Solution will be wholly free from defects, errors and bugs.
12. Technical disclaimers
12.1 Data Backup
Notwithstanding whether the Provider runs and/or manages the pmo365 within a Microsoft tenancy for the Client or otherwise, the Provider is in all circumstances not responsible for providing any data backup services and the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time. Unfortunately, data loss happens and the Client holds harmless and releases the Provider for any Loss the Client suffers in the event that the Client Data is lost. If a data backup service is provided by Microsoft, then Microsoft is solely responsible for such service (except to the extent caused by the breach of this Agreement by the Provider).
12.2 IT Infrastructure
The Provider is only responsible for the components of pmo365 that it supplies to the Client. The Provider is not responsible for the Client’s Systems or any external components. Where the Provider runs and/or manages the pmo365 within a Microsoft tenancy for the Client, the Provider’s sole responsibility is to facilitate the running of the pmo365 on the Microsoft tenancy. If for any reason there are issues with such Microsoft tenancy, then the Provider will use reasonable commercial endeavours to ensure that such issues are resolved, however, will not be liable for any Loss and/or damage that occurs to the Client in such circumstances (except to the extent caused by the breach of this Agreement by the Provider). Unfortunately, to an extent, as these Microsoft tenancies are provided by a third party provider, there are elements outside of the Provider’s control.

13. Limitation of Liability
13.1 Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to pmo365 that are not expressly set out in this Agreement to the maximum extent permitted by law.
13.2 Without limitation to clause 13.1, to the extent permitted by law, the Provider excludes all liability to the Client and Authorised Users and/or anyone else for Losses arising in any way in connection with pmo365 and/or this Agreement, including but not limited to Losses suffered as a result of:
(a) any planned or foreshadowed system downtime of the Solution;
(b) non-performance of pmo365;
(c) any reliance on pmo365 (or any information provided from pmo365);
(d) any incorrect data entry or information made by the Client or Authorised Users on the Solution;
(e) any incorrect data or content, errors, mistakes or inaccuracies on the Solution;
(f) any loss or corruption of Client Data at any time;
(g) any defects, errors and bugs in the Solution;
(h) any unauthorised access to or use of the Solution;
(i) any misuse, abuse or alterations to the Solution by the Client;
(j) any interruption or cessation of transmission to or from the Solution;
(k) the Client’s acts or omissions, including the Client’s wilful damage, negligence or abnormal working conditions;
(l) an event outside of the Provider’s reasonable control;
(m) any actions or inactions of a third party (except for the Provider);
(n) the Client’s System, applications, equipment, software or other third party equipment and software;
(o) any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Solution by any third party; and/or
(p) loss of privacy and confidential information.
13.3 Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with this Agreement, including any breach by the Provider of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Subscription Fees paid by the Client to the Provider under this Agreement in the one-month period preceding the matter or event giving rise to the claim.
13.4 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.
13.5 If the Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider's total liability to the Client for that failure is limited to, at the option of the Provider the resupply of pmo365 or the payment of the cost of resupply.
13.6 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
13.7 Without limitation to the other terms of this clause, the Provider excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.
13.8 Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, the Client’s Authorised Users or the Client's Personnel.
13.9 Where the Client is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under this Agreement, the Client must:
(a) use its best endeavours to recover that sum before making the claim;
(b) keep the Provider at all times fully and promptly informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.

14. Indemnity
14.1 Except to the extent caused by the breach of this Agreement by the Provider, the Client indemnifies and releases the Provider, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
(a) the Client or the Client’s Authorised User's use of pmo365;
(b) the supply, suspension, restriction or cancellation of the Client or the Client’s Authorised User’s access to the Solution in accordance with this Agreement;
(c) the Client or the Client’s Authorised User's breach or negligent performance or non-performance of this Agreement (including the disclosure of Confidential Information);
(d) the Client or the Client’s Authorised User’s violation of any applicable law;
(e) any claim made against the Provider and/or the Client and/or its Authorised Users by a third party arising out of or in connection with this Agreement, to the extent that such claim arises from the act or omission of the Client and/or its Authorised Users or out of the breach, negligent performance or failure or delay in performance of this Agreement by the Client;
(f) any claim made against the Provider for actual or alleged infringement of a third party’s rights arising out of or in connection with the Client Data; and/or
(g) the enforcement of this Agreement by the Provider.
14.2 The Client must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
14.3 It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.
14.4 The indemnities in this clause:
(a) are continuing obligations of the Client, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.
14.5 The Provider’s liability under this indemnity is limited under clause 13.

15. Force Majeure Event
15.1 The Provider will not be in breach of this Agreement or liable to the Client for any Loss incurred by the Client as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from a Force Majeure Event.
15.2 If a Force Majeure Event occurs, the Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
15.3 On providing the notice in clause 15.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
15.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

16. Termination and Suspension
16.1 Termination without cause
Either party may terminate this Agreement at any time, without cause on giving 30 days’ written notice to the other party. The termination will take effect on the expiry of the notice period, and except as expressly set out in this Agreement, there is to be no refund of any prepaid Subscription Fees for any post termination period.
16.2 Termination with cause
(a) Either party may terminate this Agreement with immediate effect, by giving the other party written notice where:
(i) the other party breaches any term of this Agreement and:
A. that breach is irremediable; or
B. the breach is remediable, and that party fails to rectify that breach within a reasonable time (being no less than 14 days) from being given notice; or
(ii) the other party suffers an Insolvency Event.
16.3 Provider’s right to terminate, suspend or restrict
(a) The Provider may immediately suspend, restrict or terminate this Agreement and/or the Client’s (and the Client’s Authorised Users’) access to all or part of pmo365 immediately where:

(i) it is reasonably necessary for security, technical, copyright, legal or operational reasons;
(ii) the Client breaches any term of this Agreement;
(iii) the Client violates the rights of any third party or the Provider;
(iv) the Client fails to pay any fees when due to the Provider in cleared funds in accordance with this Agreement;
(v) the Provider reasonably believes that the Client is engaged in illegal or fraudulent use of pmo365;
(vi) the Provider reasonably believes that the Client Data is inappropriate or unlawful;
(vii) the Provider reasonably believes that the Client has acted in a way that is abusive, threatening or violent towards the Provider and its Personnel;
(viii) the Provider reasonably believes that the Client is using pmo365 in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of pmo365; or
(ix) the Client suffers an Insolvency Event.

17. Effects of termination
17.1 Except where the Client terminates this Agreement in accordance with clause 16.2(a) no refund will be offered to the Client for any pre-payments made for any period after termination. Where the Client terminates this Agreement in accordance with clause 16.2(a) the Provider will offer a pro-rata refund of the Subscription Fees paid by the Client for the remainder of the Term (including any prepaid fees). This is the sole remedy available to the Client.
17.2 On termination of this Agreement:
(a) each party must promptly deliver to the other all property belonging to the other that is in its possession or control, including any Confidential Information or intellectual property;
(b) the Provider will cease providing the Services (including support and updates). Subject to the other terms of this clause, the Client may reengage the Provider at any future time following termination to provide the Services, however such returning Client will be regarded as a new client. Please note that the Provider is unable to recommence the provision of Services for a Solution that has been operated without the Provider’s minimum support (i.e. without the provision of a pmo365 subscription). Any customisations, configurations, integrations and data that exists in the Client’s pmo365 subscription prior to termination of the Client’s pmo365 subscription cannot be re-used;
(c) in accordance with clause 3.1, the Client’s Licence to the Solution survives termination.; and
(d) all amounts payable by the Client to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim.
17.3 Any clause of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
17.4 If this Agreement is terminated for any reason, the Client’s configurations of the Solution (including any customised or tailored aspects of the Solution relevant to the Client) will be lost permanently. The Client acknowledges and agrees that:
(a) if the Client recommences use of the Solution in the future, the Client will need to reconfigure and customise the Solution to the Client’s circumstances from scratch, which will result in the Client being charged relevant Fees if the Client requests the Provider engage in such reconfiguration and customisation; and
(b) the Client releases the Provider from any claim in relation to the above.

18. Confidentiality and Privacy
18.1 Confidential Information
(a) The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:
(i) disclose the Confidential Information of the other party to any person; or
(ii) use the Confidential Information of the other party for their own or a third party’s benefit.
(b) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of this Agreement.
(c) If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.
(d) In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
(e) In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.
18.2 Privacy
(a) In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Client Data or otherwise provided to, collected or received by either party in connection with the Solution, the Client must comply with:
(i) the Privacy Legislation, and Personal Information in accordance with the Privacy Legislation (as it applies to that party); and
(ii) the applicable Policies and guidelines of the Provider as made known from time to time.
(b) The Client warrants and represents that all Personal Information that it provides to the Provider complies with this clause and this Agreement at all times. Immediately upon the Client becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the Client must inform the Provider of this.

19. Notices
19.1 All notices authorised or required under this Agreement to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.
19.2 The following shall constitute proof of receipt:
(a) proof by posting by registered post; or
(b) proof of dispatch by email.
19.3 Receipt of a notice given under this Agreement will be deemed to occur:
(a) in the case of a communication sent by pre-paid registered post, on the third business day after posting;
(b) in the case of an email, on the business day immediately following the day of dispatch.
19.4 If a notice is sent via post, it must also be sent via email.

20. General Provisions
20.1 Variation
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
20.2 No Waiver
(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) Words or conduct referred to in clause 20.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
20.3 Assignment, Novation and Other Dealings
(a) The Provider may assign or novate any rights that arise out of or under this Agreement without the consent of the Client.
(b) Any rights of the Client that arise out of or under this Agreement are not assignable or capable of novation by the Client without the prior written consent of the Provider, whose consent may be unreasonably withheld.
20.4 Counterparts
This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this Agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this Agreement. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
20.5 Costs
The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.
20.6 Severability
(a) If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
(b) Clause 20.6(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.
20.7 No Merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.
20.8 Survival
Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.
20.9 Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
20.10 Time of the Essence
Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.
20.11 Relationship of the Parties
(a) Nothing in this Agreement gives a party authority to bind any other party in any way.
(b) Nothing in this Agreement imposes any fiduciary duties on a party in relation to any other party.
20.12 Remedies Cumulative
Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.
20.13 Entire agreement
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
20.14 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this Agreement.
20.15 Governing Law and Jurisdiction
(a) This Agreement is governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 20.15(b) on the basis that:
(i) any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or
(ii) the courts described in clause 20.15(b) do not have jurisdiction.

Annexure A
Schedule of pmo365 Subscription
pmo365 Subscription is the combination of pmo365 Solution and pmo365 Services. There are three pmo365 Subscription levels: Self-Managed, Co-Managed and Fully-Managed. The table below lists the components (Solution and Services) included in each pmo365 Subscription level as provided under this Agreement.

*pmo365* Self-Managed	*pmo365* Co-Managed	*pmo365* Fully-Managed
*pmo365* Solution
The *pmo365* Solution: The *pmo365* applications, templates, fields, forms, workflows, reports and dashboards	The *pmo365* Solution: The *pmo365* applications, templates, fields, forms, workflows, reports and dashboards	The *pmo365* Solution: The *pmo365* applications, templates, fields, forms, workflows, reports and dashboards
Deployment to three environments (Dev, Test & Prod)	Deployment to three environments (Dev, Test & Prod)	Deployment to three environments (Dev, Test & Prod)
Solution warranty	Solution warranty	Solution warranty
*pmo365* Services (described in *pmo365* Services Catalogue)
Level 2 Support (break/fix)	Level 2 Support (break/fix)	Level 2 Support (break/fix)
	DevOps Services for Customisations, Configurations and Integrations delivered via monthly DevOps sprint cycles	DevOps Services for Customisations, Configurations and Integrations delivered via monthly DevOps sprint cycles
		Level 1 Support (end-user)
		Solution Training
		Data Management
		Business Analysis

Annexure A (cont.)
Schedule of DevOps Services

The Services
• Our Solution (depending on your Subscription Level) may include the provision of DevOps services, being assistance with customisation, configurations and integration between our Solution and your and IT systems or general operations (DevOps Services).
• If you are entitled to Services, these will be run in 3-week sprints during which time specific DevOps services will be supplied in the form and manner as agreed at commencement of any relevant sprint (Sprints).

Number of Sprints
The number of Sprints you will be entitled to receive will depend on how many business days are in the relevant Billing Cycle that can accommodate whole 3-week sprints. The provider does not guarantee that all business days in a Billing Cycle will have Sprint services.

User Story Points
If you are entitled to receive DevOps Services, you will only be entitled to 32 User Story Points per Sprint.

Annexure B
Microsoft Licences Required

The following Microsoft licenses are required for the underlying Microsoft Power Platform:

PowerApp Licenses for all pmo365 Apps users, see: https://powerapps.microsoft.com/en-us/pricing
PowerBI Pro Licenses for all pmo365 reports and dashboard users, see: https://powerbi.microsoft.com/en-au/pricing

Microsoft software licenses can be:

Provided by the client using existing licenses.
Provided by the client by acquiring them through Microsoft agreements.
Provided by EPM Partners for additional cost, included with pmo365 monthly fee

Updated as of 13 March 2024

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