General Terms and Conditions
The terms that govern your access to and use of the DebtCol services.
Current as and from [insert date T&Cs are made live]
Agreement
This agreement contains the terms and conditions that govern Your access to and use of the DebtCol Services and is made between DebtCol Software Pty Ltd (ABN 60 600 267 534) of Level 9, 330 Collins Street, Melbourne, VIC, Australia and its associated entities and related companies (DebtCol, We, Us, Our), and you or the entity you represent (Client, You, or Your) comprising the following parts:
these General Terms and Conditions of this agreement; and
the terms of any Order Form entered into between the Parties.
(together, this Agreement).
If there is any inconsistency between the documents listed above, the documents listed later will prevail to the extent of the inconsistency, except to the extent any of the provisions in this Agreement are declared to be an unfair contract term under applicable Consumer Law or are otherwise illegal, unenforceable or invalid.
You accept and agree to be bound by this Agreement on the earlier of:
when you sign the Order Form; or
when You access the Software,
(Effective Date).
Your use of the DebtCol Services is conditional on You accepting the terms of this Agreement. If you are the Client, by downloading, installing, copying or otherwise using the Software and the DebtCol Services, you accept and agree to be bound by the terms of this Agreement. Acceptance binds You and the organisations, entities or persons you represent (for the purpose of receiving the DebtCol Services), and all of Your users to the terms and conditions of this Agreement in their use of the Software.
If You are a Permitted User, by accepting these terms or accessing or using the Software or DebtCol Services, You agree to comply with this Agreement as they relate to access and use of the Software and DebtCol Services. You agree that Your right to access the Software and DebtCol Services arises from the Client’s right to access and use the Software and DebtCol Services and if the Agreement expires or is terminated, Your right to access and use the Software or the DebtCol Services will also end.
If You do not accept the Agreement, then do not use or access the Software.
Term
This Agreement will commence on the Effective Date and continue for the Initial Term and any Renewal Term(s) (as applicable).
After the expiry of the Initial Term, this Agreement will automatically renew for further periods of 1 year or other timeframe stated in an Order Form (Renewal Term) unless a Party gives the other Party written notice of its intention not to renew at least 30 days before the end of the Initial Term.
After the end of the Initial Term, either party can terminate this Agreement without cause in accordance with clause 13.
Third Party Products
You acknowledge that the DebtCol Services may allow integration with Third Party Products (Third Party Integration).
You acknowledge and agree that:
it is at Your election that you use the Third Party Products which are provided for Your convenience only;
Your access and use of any Third Party Products or Third Party Integration is at your own risk, and We disclaim all responsibility and liability for Your use of any Third Party Products or Third Party Integration;
We may be required by a Third Party Provider to amend, delete or discontinue the availability of a Third Party Integration or part thereof, and that We will have no liability to You for any such amendment, deletion or discontinuation;
You use of the Third Party Products are not part of the DebtCol Services and are not governed by this Agreement or our Privacy Policy. Your use of any Third Party Product is subject to that Third Party Provider’s own terms of use and privacy policies to which you agree when you subscribe to that Third Party Product.
Licence, Permitted Users and Restrictions
Licence: Subject to the restrictions set out in this clause, DebtCol grants to You a non-exclusive, non-sublicensable, non-transferable, revocable license for You (through Your allocated number of Permitted Users) to access and use the DebtCol Services during the Term for the Permitted Purpose and in accordance with the terms set out in this User Licence, the Order Form and all applicable Laws.
Licence Duration: The licence granted by DebtCol will immediately come to an end upon termination or expiry of this Agreement.
Minimum Commitment: The Order Form will specify the minimum number of allocated Permitted Users (Minimum Commitment) of the Software which must be maintained during the Term.
Flexi Users: During the Term and for additional fees, You may request and DebtCol may agree to provision additional Permitted Users above the Minimum Commitment (Flexi Users). Provision of any agreed Flexi Users will be effective at the start of the month following Your request. You may also request for DebtCol to remove any provisioned Flexi Users during the Term. Removal of any requested Flexi Users will be effective at the start of the month following Your removal request.
Permitted Users: You warrant and agree that You:
will (and will ensure that Your Permitted Users) will only use and access the DebtCol Services for the Permitted Purpose, in compliance with the terms of this Agreement and in accordance with all applicable Laws.
will restrict access to the Software to any Permitted Users; and
are responsible and remain fully liable for the acts and omissions of Your Permitted Users and Representatives in connection with this Agreement.
Licence Restrictions: Except as expressly permitted under this Agreement, You agree to ensure that neither You nor any Permitted User will not (nor attempt to):
use the Software for any purposes other than the Permitted Purpose;
use the Software on behalf of or for the benefit of any third party;
User Credentials: share any User Credentials or otherwise enable unlawful access to the Software by any other person);
Use the Software to store or transmit, illegal materials or malicious code;
Disclaimers: remove, alter or deface any registered or unregistered trademark, logo, copyright notice, disclaimer or other proprietary notice appear on or in the Software or any materials accessed via the Software.
Trade Marks: adversely affect or jeopardise the rights of DebtCol (or its Representatives) to register any unregistered trade marks, whether or not an application for registration has been made;
Misuse and Damage: interfere, damage, alter, misuse or gain unauthorised access to the DebtCol environment or system or otherwise interfere with the ability of any other user of the Software;
Reverse Engineer: decompile, disassemble, translate, replicate or otherwise reverse engineer the Software or attempt to circumvent the security-related features of the Software;
No Transfer: sublicense, sell, resell, commercialise, assign or transfer any right, title or interest (including any Intellectual Property Rights) in the Software to any person;
Copyright: copy, reproduce, publish, disclose, distribute, display, alter, modify or adapt the Software or create a derivative work (save where reasonably necessary to use or access the Software for the Permitted Purpose); or
Misuse: use the Software in any way that would or may:
(i) constitute a misuse of any person’s Confidential Information or infringe upon any person’s rights (including Privacy rights, Intellectual Property Rights and Moral Rights);
(ii) breach any Laws or otherwise amount to a use or disclosure for unlawful purposes;
(iii) promote or encourage spam or other unsolicited bulk email;
(iv) damage the reputation or goodwill of DebtCol or otherwise be misleading, deceptive or defamatory; or
(v) be intended to avoid incurring Fees or minimise the applicable Fees payable,
(each, a Non-Permitted Purpose).
Provision of Software and Client Support Services
Access: During the Term, DebtCol will provide the Client with access to the Software through the provision of a customised hyperlink and access to User Credentials.
Provisioning of the Software is subject to DebtCol availability and We give no undertaking or guarantee regarding an installation date.
Upon provisioning and installation, You must advise us within 14 days if there are performance issues with the Software or installation. If We do not hear from you within this period, the Software installation will be deemed successful.
Client Support Services: During the Term, where the Software is not functioning in accordance with its specifications, DebtCol will use commercially reasonable endeavours to make the Software operational as soon as practicable after receiving Your support request (Client Support Services).
To access Client Support Services, the Client will provide to DebtCol a support request by submitting a ticket on the Support website (https://customerservice.debtcol.com.au), calling 1300 765 609 or by email to customerservice@detbcol.com.au. DebtCol will provide the Client with reasonable Customer service support between 8:30am – 5:00pm AEDT on Business Days.
The Client acknowledges and agrees that:
Client Support Services are provided between 8:30am – 5:00pm AEDT on Business Days;
Client Support Services does not include the rectification of Your hardware, operating systems or network relating to third party software, or defects, data corruptions or failures caused by viruses, third party software or components in your environment or systems which may interfere with the operation of the Software. This is the responsibility of Your separate IT providers; and
During the provision of Client Support Services, the Client will ensure that it provides a suitably trained and informed user to demonstrate the any problems to Us and provide any information or reasonable assistance that may be required by Us.
Service Variations
DebtCol reserves the right to, at any time during the Term:
modify the method of supply and delivery of, or access to, the DebtCol Services;
change, refine or discontinue any feature or functionality of the DebtCol Services;
amend or vary this Agreement from time to time. We will provide reasonable notice (at least 14 days) in writing to You if any of these changes materially and adversely affects Your rights under this Agreement;
require the Client to obtain and use the most recent version of the Software and DebtCol will make those versions available to the Customer in a manner to be notified by DebtCol to the Client;
suspend or other deactivate Your, and each of the relevant Permitted Users’, access to the Software where there is an actual or suspected security concern associated with the continued access by those users; and
make temporarily unavailable or otherwise suspend access to the Software where reasonably necessary for: scheduled or emergency maintenance, system updates; other upgrades; or any other changes to the Software, and
where possible, we will provide reasonable written notice to You.
Where DebtCol exercises its rights under clause 6.1(a) – (d) above, You may terminate this Agreement immediately by notice in writing to DebtCol within 30 days of the change taking effect.
Client Data
The Client will provide the Client Data reasonably required to enable DebtCol to provide the DebtCol Services.
You grant to DebtCol, a non-exclusive, non-sublicensable (except as provided under clause 7.3) licence during the Term for the limited purpose of providing the DebtCol Services to You. DebtCol must not use Client Data for any other purpose without Your prior written consent.
You consent to and agree that DebtCol may sub-license and disclose the Client Data to Third Party Providers and subcontractors during the Term for the limited purpose of providing the DebtCol Services or Third Party Integration to the Client.
The Parties acknowledge and agree that:
It is Your responsibility to ensure that the Client Data is accurate and correct;
Where You have asked DebtCol to input Client Data into the Software, DebtCol will use commercially reasonable endeavours to input the data accurately, however DebtCol does not accept responsibility for any inaccurate data provided by You.
Use of AI
The following additional terms apply where DebtCol offers AI Services in connection with the DebCol Services you have ordered and access.
The AI Services utilise artificial intelligence (AI) algorithms and technologies, including generative AI and may include, but are not limited to, access to Your Matter Data, and answers to questions, that are generated through the Software. Additionally, AI Services may also include prompts and reminders regarding potential deadlines, due dates, and other requirements related to legal or business practice (together, the AI Services).
Both DebtCol and You acknowledge and agree that:
Documents, data and materials uploaded, important or started against a matter file within the Software (Matter Data) may be processed by AI as part of the AI Services from time to time. The AI Services data processing activities and functionality align with our products’ primary uses. The use, collection, and processing of any data is consistent with Our core principles and requirements described in our Privacy Policy;
DebtCol will not use Your Matter Data for the purposes of improving or training the AI Services; and
You are responsible for ensuring that You have all necessary rights and consents, including third party privacy consents (Client Consents), to enable You to provide the Matter Data to DebtCol and to permit DebtCol to access and use the Matter Data for the purposes of delivering the AI Services, and otherwise in accordance with this Agreement.
You warrant that You own or otherwise have and will have the necessary rights and consents in and relating to Matter Data (including, without limitation, Client Consents) so that, as received by DebtCol and processed in accordance with these General Terms, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any other rights of any third party or violate any applicable law.
You will indemnify, defend and hold harmless DebtCol for any loss, damages, costs, and expenses DebtCol suffers or incurs as a result of Your failure to obtain and maintain such Client Consents as may be required. You acknowledge that DebtCol is not a legal authority, cannot, and has not provided You with advice related to the necessity of Client Consents within Your jurisdiction.
You acknowledge that:
The AI Services may not have been developed, designed, or approved by legal practitioners and services are not provided to You with any legal or professional opinion or endorsement of any kind. DebtCol does not represent or warranty that any elements of the AI Services:
Comply with or reflect applicable Laws;
Are suitable for Your particular use, objectives, or circumstances; or
Are up to date or current.
The AI Services do not constitute legal advice no should they be relied upon as such by You. The AI Services should be reviewed by a qualified lawyer before being incorporated in, or relied on, in connection with any legal advice; and
The AI Services may not be accurate or up-to-date and You are responsible for validating or ignoring the AI Services based on Your own professional skill, judgment and experience.
Client Acknowledgement and obligations
Client Acknowledgement: You acknowledge and agree that:
DebtCol is entitled to rely on the accuracy and completeness of any Client Data provided by You and, unless expressly required otherwise, DebtCol has no obligation to verify the accuracy or completeness of the Client Data;
DebtCol does not take any responsibility where the Client is using unsupported or old versions of third party software or operating systems which are required to interoperate with the Software; and
DebtCol does not take any responsibility for backing up data stored locally in Your environment or systems.
Client Obligations: You acknowledge and agree that You (and Your Representatives and Permitted Users as appropriate):
will provide DebtCol with any Client Data and sufficient written instructions as reasonably required to enable DebtCol to provide the DebtCol Services;
will comply with any terms from Third Party Providers;
will implement the security measures specified under clause 19;
will ensure that any of Your third party software or operating systems which integrate or interoperate with the Software will be kept up-to-date and continue to be supported by the relevant provider; and
are fully responsible for the back-up of all Your data stored locally in Your systems and will ensure You can access and use such data when required; and
will comply with the terms of this Agreement.
(together, the Client Obligations).
DebtCol is not liable for any failure to provide the DebtCol Services to the extent that such failure is due to Your failure to fulfil any of Your Client Obligations.
Invoicing and Payment
Payment: The Client must pay to DebtCol all Monthly Amounts, Flexi Amounts, and any Service Charges (collectively, the Fees) as applicable and in accordance with this Agreement. All Fees will be GST inclusive unless otherwise indicated. Subject to 10.6:
all Fees, when paid, are non-refundable, even if the Client stops using the Software;
if the Client terminates this Agreement before expiry of the Initial Term, the Client remains liable for any remaining Fees due up to the expiry of the Initial Period.
Invoices: On a periodic basis, DebtCol will provide You a Tax Invoice that complies with GST Law for payment for the Fees (as applicable) by email to the email address disclosed on the Order Form, or another email address as you specify to us. Invoices are payable within the period specified on the invoice by direct debit unless otherwise agreed by the Parties in writing.
Overdue Amounts: If a direct debit transaction fails for three (3) or more consecutive attempts, the total outstanding Fees will immediately become due and payable.
In the event that any payment of the Fees becomes overdue (Overdue Amount), access to the DebtCol Services will be suspended without further notice until payment is received in full.
Interest: All Overdue Amounts may incur interest equal to a rate that is 5% per annum above the applicable Cash Rate in the Territory and will be calculated on a daily basis. The Parties acknowledge and agree that this rate is a genuine pre-estimate of the loss suffered for such a breach.
DebtCol will refund a prorated portion of any prepaid Fees, or the Client will not be liable to pay the relevant portion of the Fees, which relate to the Client’s termination of this Agreement:
on receiving notice of a Fee increase, in accordance with clause 10.7;
as a result of a material breach by DebtCol, in accordance with 13.2.
Fee Review: DebtCol may increase the Fees as reasonably determined by DebtCol by providing You with reasonable advanced written notice of the proposed Fee adjustment.
If You object to any increase to Fees notified by DebtCol under 10.7 above, you may elect to terminate this Agreement by providing notice in writing from receipt of such notice within 30 days of the change taking effect.
Warranties, Acknowledgments and Exclusions
DebtCol Warranty: DebtCol warrants that it will use reasonable commercial endeavours to provide the DebtCol Services:
in a professional, competent, timely and responsible manner;
in compliance with the terms of this Agreement; and
in compliance with all Laws that apply to DebtCol and the supply of the DebtCol Services.
Client Warranties: You represent and warrant that You and Your Permitted Users:
will use the DebtCol Services in compliance with this Agreement and applicable Laws; and
in accessing the DebtCol Services will:
maintain current, complete and accurate information in Your account;
keep any password used with the DebtCol Services confidential, and not disclose it to any other person accessing the DebtCol Services via their account;
change Your password as soon as practicable if there is reason to suspect the password has been compromised; and
notify DebtCol immediately if it is believed that any person has access an account in breach of this Agreement.
Client Acknowledgements: Except as otherwise expressly provided this Agreement and to the extent the following warranties cannot be excluded by Law, You acknowledge and agree to the fullest extent permitted by Law:
the DebtCol Services are provided to the Client on an ‘as is’ and ‘as available’ basis and all terms, warranties, representations and conditions are expressly excluded, and DebCol expressly disclaims all express or implied terms, warranties representations, and conditions in respect of the DebtCol Services including that the DebtCol Services will be merchantable, will be non-infringing, will meet Your requirements, are fit or suitable for Your intended purpose or use; will be compatible with, or suitable for use with Your own software or applications; will be error-free, correct, accurate, complete, reliable, secure, available or function in an uninterrupted manner, current, up-to-date or otherwise.
You are solely responsible for ensuring, and must satisfy Yourself, that the DebtCol Services licensed to You meet Your needs;
DebtCol does not provide any legal advice or legal services, accounting or other professional services advice by providing Your access to the DebtCol Services; and
The DebtCol Services may include links, integration, or connections to third-party websites, applications or other services. Such connections do not imply review or endorsement by Us. You (where applicable), and Your Permitted Users proceed at Your own risk to a third-party website, application, or service.
Remedies: In the event of breach by DebtCol of (i) clause 11.1; (ii) any warranties or guarantees implied by Law; or (iii) any warranties or guarantees that cannot be excluded by Law, then DebtCol’s liability is limited at Your option, to (i) supplying the Services again or payment of the cost of having the Services supplied again; and (ii) in the case of goods, replacing the goods, supplying equivalent goods or repairing the goods, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
NZ Consumer Guarantee Exclusion: To the extent that the Consumer Guarantees Act 1993 (NZ) (CGA) applies to DebtCol and its supply of the DebtCol Services or other goods or services, the Client confirms that the DebtCol Services or other goods or services provided by DebtCol under this Agreement are acquired for the purposes of a business (as that term is defined in the CGA) and the Client agrees that the CGA does not apply to the DebtCol Services or other goods or services supplied by DebtCol under this Agreement.
Limitation of Liability
Liability Cap: Subject to 11.4, 12.3 and 12.4 and to the extent permitted by Law, DebtCol’s maximum aggregate liability to the Client or any other person for all Claims and Losses (in aggregate) arising directly or indirectly in connection with this Agreement is limited to the Fees paid to DebtCol by You under this Agreement within the 12 months immediately preceding the date of any such Claim or Loss.
Consequential Loss: To the maximum extent permitted by Law, neither the Client nor DebtCol will be liable under or in connection with this Agreement for any Consequential Loss.
Contribution: To the extent permitted by Law, a Party’s liability to the other Party in connection with this Agreement will be reduced proportionality by the extent to which the acts or omissions of the other Party caused or contributed to the relevant Loss or Claim suffered or incurred by the first Party.
Mitigation: Each Party warrants and agrees that it will take all reasonable steps to mitigate its Losses in respect of any Claims made in connection with this Agreement.
General Exclusions: Notwithstanding any terms of this Agreement, DebtCol will have no liability whatsoever to You or Your Related Bodies Corporate for any Loss or Claim caused directly or indirectly by:
The failure by You to comply with any Laws governing the conduct of Your business;
The inability of You, Your Permitted Users, Your Representatives to access or use the DebtCol Services for any reason;
The acts of omissions of any person not within DebtCol’s reasonable control;
Equipment, data or services supplied to DebtCol by You or any third party not within DebtCol’s reasonable control;
The Third Party Providers, Third Party Products, Third Party Integrations, or any linked or integrated third party websites, content, services or applications; or
The accuracy of Client Data;
A Force Majeure Event.
Termination
For convenience: Following the Initial Term, either party may terminate this Agreement without cause upon at least 30 days’ prior written notice to the other party. If the Client delivers a written notice to terminate under this clause, it must also deliver payment (if it has not done so already) for the entire 30 days’ notice period.
For cause: In addition to any other termination rights included in this Agreement, either party shall be entitled to terminate this Agreement immediately by giving written notice to the other party if that other party:
commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days’ written notice of that breach (Rectification Period);
commits a material breach of this Agreement which is incapable of remedy; or
becomes the subject of an insolvency event.
If the Client fails to rectify a breach during the Rectification Period and DebtCol elects to terminate this Agreement in accordance with 13.2(a), the Client must pay any remaining Fees for the Initial Term or, if during a Renewal Term, the 30 day period from the notice of breach.
Without limiting any of the rights provided elsewhere in this Agreement, DebtCol may terminate or suspend (at its election) these this Agreement with immediate effect where:
there is a reasonable suspicion that You have engaged in inappropriate or unlawful activity while using the DebtCol Services (in DebtCol’s sole discretion);
Your use of the DebtCol Services shows signs of fraud, abuse or suspicious activity; or
You owe to DebtCol undisputed amounts that have been outstanding for more than 30 days, provided that DebtCol has provided to You a written demand for payment.
Consequences of Termination
If this Agreement is terminated or expires, all of the Client’s rights to use the DebtCol Services and Software will immediately end, and the Client will discontinue using the Software, and destroy any copies of the other Party’s Confidential Information that are either the Client’s possession or under the Client’s control.
Where the Agreement expires or is terminated in accordance with clause 13.1, the Client may request that DebtCol provide an export of data from its instance of the Software. In such circumstances, the Client must provide a written request to DebtCol within 30 days after expiry or termination for a data export (Export Request). Where DebtCol receives an Export Request from the Client, DebtCol will in a timely manner provide to the Client access to a package of the data reasonably available for export in a format chosen by DebtCol. You acknowledge that the data exported by DebtCol may not include all data stored within Your Software installation.
Termination of this Agreement will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement.
A party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have and will not relieve either party of any obligation or liability which arose prior to the effective date of such termination.
Survival: The following clauses will survive any termination of this Agreement: 3, 7, 8, 9, 10 (to the extent the clause remains outstanding), 12, 14, 16.1, 17, 18, 20, 21 and 22.
Force Majeure
Neither Party will be liable for any failure to perform or delay in performing their obligations under this Agreement if the failure or delay results from an event of Force Majeure.
To the extent that a Party’s delay or inability to perform the Party’s obligations is due to an event of Force Majeure, the affected obligations of that Party under this Agreement will be suspended until the passing of that Force Majeure event.
Intellectual Property Rights
DebtCol IP: You acknowledge and agree that:
DebtCol retains all right, title and interest (all Intellectual Property Rights) in or arising out of the DebtCol Services and DebtCol Material; and
The DebtCol Services, Software and DebtCol Materials are made available to You on a limited access basis, and except to the extent of any right expressly granted under this Agreement You do not acquire any right, title, interest or any Intellectual Property Rights to the Software or DebtCol Materials through this Agreement.
Client Data: DebtCol acknowledges and agrees that You are and remain the sole and exclusive owner of all rights, title and interests (including all Intellectual Property Rights) in Client Data.
Derivative Works: Where the Client is authorised to create new material or works using the DebtCol Services or DebtCol Materials, then, unless otherwise specified:
subject to DebtCol’s underlying ownership of the DebtCol Materials, the Client owns the Derivative Work upon creation; and
for clarity, in respect of the DebtCol Materials incorporated in such Derivative Works:
DebtCol owns and continues to own all rights, title and interests (including all Intellectual Property Rights) to those DebtCol Materials; and
the DebtCol Materials subsisting in a Derivative Work are subject to the licence granted under clause 4.1 and this Agreement.
Confidential Information
Mutual obligations of confidence: Subject to clause 17.2, where the Recipient receives Confidential Information from the Discloser under or in connection with this Agreement, the Recipient must:
keep the Confidential Information strictly confidential;
not use, modify, reproduce or exploit the Confidential Information for any purpose other than as expressly permitted under this Agreement;
not disclose Confidential Information to any person other than as expressly permitted under this Agreement;
ensure that the Recipient’s Representatives and Related Bodies Corporate observe all of the Recipient’s obligations as set out in this Agreement as if those obligations were imposed on the relevant Representative or Related Body Corporate directly; and
establish and maintain effective security measures to safeguard the Confidential Information in the Recipient’s possession or control (including Confidential Information in the possession or control of any of its Representatives or Related Bodies Corporate) from loss, theft, or unauthorised access, use, copying, modification, destruction or disclosure using reasonable measures (but in any event using measures no less stringent than those used to protect the Recipient’s own Confidential Information of a like nature).
Permitted use and disclosure: Notwithstanding clause 17.1 and subject to clause 17.3 the Recipient may disclose Confidential Information to:
its Representatives, limited to the extent necessary to perform the Recipient’s obligations or exercise its rights under this Agreement;
to its professional advisors, to obtain legal or other professional advice in relation to matters arising under or in connection with this Agreement;
the extent required to comply with any Law, binding directive of a Regulator or a court order;
to the extent required to do so in connection with legal proceedings relating to this Agreement; or
as otherwise agreed in writing by the Parties.
Conditions of Disclosure: Before using or disclosing the Confidential Information under clause 17.2, the Recipient must:
notify the Discloser promptly in writing upon becoming aware that a disclosure may be required under clauses 17.2(c) or 17.2(d) in order for the Discloser to have the opportunity to prevent the disclosure of its Confidential Information or to obtain a protective order or other remedy;
to the extent such disclosure is not prevented, limit the disclosure of any Confidential Information permitted under clause 21.2 solely to the extent strictly necessary to satisfy the purpose of the disclosure; and
without limiting any other obligations under this Agreement, take all reasonable and lawful steps to preserve the confidentiality of the Confidential Information and, to the extent possible, ensure that any Confidential Information disclosed under clause 17.2 is subject to obligations of confidentiality in accordance with the terms of this Agreement.
Acknowledgements: The Parties acknowledge and agree that the other Party’s Confidential Information is commercially sensitive, proprietary and valuable to the other Party and, in respect of any breach or threatened breach by a Party or any of its Representatives or Related Bodies Corporate of its obligations under this Agreement (including those contained in this clause 17):
damages may not be available, or if they are, they may not be an adequate remedy for the other Party;
the other Party is entitled to seek injunctive relief as a remedy, in addition to any other remedies available at Law.
Privacy
Privacy Policy: In addition to these General Terms, our Privacy Policy sets out in detail how we process Your Personal Information that You, Your Representatives or Your End Users disclose to DebtCol.
Compliance with Privacy Laws: Each Party warrants and agrees that it and its Representatives will comply with all Privacy Laws in connection with any Personal Information collected, used, disclosed, stored or received in connection with this Agreement.
Disclosure of Personal Information: Each Party warrants that any Personal Information disclosed by or on behalf of the Discloser to the Recipient or its Representatives under this Agreement will be and has been collected, used, processed, held and disclosed in accordance with the relevant requirements of the Privacy Laws.
Receipt of Personal Information: In relation to any Personal Information disclosed by or on behalf of the Discloser to the Recipient or its Representatives under this Agreement, the Recipient must (and must ensure that its Representatives must):
not collect, use, disclose, store, transfer or handle the Personal Information except in accordance with the Privacy Laws and strictly for the purpose of performing its obligations and exercising its rights under this Agreement, including the Permitted Purposes;
take all reasonable steps to ensure that the Personal Information is protected from misuse, Loss, unauthorised access, modification or disclosure;
take all reasonable steps to destroy or permanently de-identify the Personal Information upon the earlier of the expiry or termination of this Agreement or when it is no longer needed for a purpose connected with this Agreement;
only use or disclose the Personal Information for a purpose connected with this Agreement or as permitted or required by Law; and
notify the Discloser in writing, without delay and within no more than 72 hours after becoming aware:
of any compliance notice or other request issued by a relevant Regulator; or
of any breach of this clause 22 or any applicable Privacy Law.
Notification of Data Breach: Where a Party has reasonable grounds to suspect a Data Breach has occurred, that Party will:
notify the other Party in writing including all relevant details regarding the suspected Data Breach without undue delay and no later than 72 hours after becoming aware of such a breach;
co-operate with the other Party to investigate the suspected Data Breach;
take all reasonable steps to mitigate the impact of the Data Breach;
take all reasonable actions to prevent any repeat of the Data Breach;
co-operate with the other Party in good faith to minimise reputational damage or loss of goodwill, including liaising on communications with the applicable Regulator, affected individuals and other third parties to minimise disruption or distress to the individual; and
where the Data Breach is a Notifiable Data Breach, co-operate in good faith with the other Party to prepare and submit notifications to the applicable Regulator and affected individuals and provide other assistance as reasonably required to support the other Party in its compliance with Privacy Laws.
Data Protection and Security
DebtCol Security Measures: DebtCol will use commercially reasonable endeavours to establish, maintain and enforce security procedures and controls designed to ensure that the DebtCol Services do not contain any publicly known malware.
Client Security Measures: The Client must use commercially reasonable endeavours to establish, maintain and enforce security measures designed to ensure that:
You will not introduce publicly known malware to the Software or DebtCol environment or systems; and
no unauthorised persons can obtain unauthorised access to the Software or otherwise use the Software for purposes not authorised or permitted by this Agreement.
The Client must (and must ensure that each of its Permitted Users):
Take all steps necessary to protect the User Credentials from theft, loss, fraudulent or unauthorised use and keep the User Credentials confidential in accordance with clause 17 (Confidentiality); and
Ensure that the User Credentials are not disclosed to or used by any person other than an authorised Permitted User.
Audit Rights
Client Obligation: The Client must maintain complete, up to date and accurate records of the Client’s use of the DebtCol Services and other such records reasonably related to Your compliance with this Agreement. Such records must be kept in a manner which permits them to be conveniently and properly audited for a period of at least 7 years after the expiry or termination of this Agreement.
The Client:
grants DebtCol or its nominee, upon notice to the Customer of at least two Business Days, the right to inspect and/or audit the Client’s records and/or system during normal business hours in order to assess the Client’s compliance with this Agreement; and
Must reasonably co-operate with any investigation concerning the use by the Client of the DebtCol Services or the Software.
Dispute Resolution
Any dispute or difference arising from or in connection with this Agreement, shall be dealt with in accordance with the provisions of this clause 21.
The dispute resolution process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen. The notice must include reference to this clause 21 and contain reasonable information as to the nature of the dispute.
The Parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
Within 14 days of service of the notice, an authorised representative of both You and DebtCol shall meet, either in person or via conference, to discuss the dispute and attempt to resolve it.
If the dispute remains unresolved following the meeting, You and DebtCol agree to enter into mediation in good faith to attempt to settle such a dispute.
Until the Parties have completed the steps referred to in this clause 21, and have failed to resolve the dispute, neither Party shall commence formal legal proceedings or arbitration. Should either party choose to proceed with formal legal proceedings despite this requirement, they acknowledge and agree that all costs associated with such legal proceeding or arbitration shall be borne solely by that party.
General Provisions
Notices: DebtCol will provide notices to You by sending an email to the email address notified to Us as the primary account contact. You will provide notices under this Agreement to Us by sending an email to customerservice@debtcol.com.au which will be updated with you from time to time. Notice will be treated as received when the email is sent. You are responsible for keeping Your notification email address current throughout the Term.
Assignment: We may subcontract Our obligations under this Agreement to third parties. You may not assign or transfer any obligation under this Agreement without the prior written consent (which will not be unreasonably withheld). If you wish to assign this Agreement, You will provide Us with at least sixty (60) days’ notice in writing, and complete any reasonably necessary documentation as directed by Us.
Entire Agreement: This Agreement contains everything the Parties have agreed in relation to the matters it deals with. This Agreement supersede all other prior or contemporaneous understandings or agreements between the Parties regarding the subject matter of this Agreement. Neither Party can rely on an earlier agreement, or anything said or done by another Party, or by a director, officer, agent, partner or employee of that Party, before this Agreement were executed.
No agency or partnership: Nothing contained or implied in this Agreement makes one Party the partner, agent or legal representative of the other Party for any purpose. Nothing in this Agreement creates a partnership, agency or trust, and neither party has any authority to bind the other Party.
Each party agrees to do all things and sign all documents reasonably necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
Severability: If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement are not affected.
Variation: No variation of this Agreement will be of any force or effect unless it is in writing and accepted by the Parties to this Agreement. In this regard, the following will constitute acceptance by the Client:
Electronic acceptance such as by clicking ‘I agree’ (or similar) upon notification of the variation; or
Continuing to use the DebtCol Services following the written notification of the variation.
Commercial Messages: The Client agrees that DebtCol may send the Client commercial electronic messages marketing DebtCol’s goods and services and new products. The Client also agrees that DebtCol may send electronic messages containing updated information in relation to the Services, news and various other information of related interest.
Electronic signature: The Parties consent to entry into this Agreement by electronic means pursuant to the Electronic Transactions Act 1999 (Cth) or any equivalent legislation in the relevant jurisdiction.
Waiver: The fact that a Party fails to do, or delays in doing, something the Party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another Party. A waiver by a Party is only effective if it is in writing and signed by the Party. A written waiver by a Party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
Governing law and jurisdiction: This Agreement will be governed by and construed in accordance with the Laws in force in Victoria, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of Victoria and the courts that hear appeals from them.
Definitions
Business Day means a day other than a Saturday, Sunday or gazetted public holiday in Australia.
Cash Rate means:
In Australia: the cash rate lats published by the Reserve Bank of Australia;
In New Zealand: the official cash rate last published by the Reserve Bank of New Zealand.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether arising in contract (including under an indemnity), tort (including negligence), statute, equity, at Law or otherwise.
Client Data means any data, information, text, content or other materials (including Personal Information and Confidential Information) which is supplied to DebtCol by You or Your Representatives in connection with this this Agreement; but for clarity, does not include: any DebtCol Materials supplied to You in connection with this Agreement; any materials already held by DebtCol prior to any supply by You to DebtCol; any material that independently comes into the possession of DebtCol (other than through You or Your Representatives); and any metadata generated by DebtCol in the operation of the DebtCol environment or provision of the DebtCol Services.
Confidential Information means any information (in any form) directly or indirectly disclosed by the Discloser to the Recipient (regardless of whether identified as such or not) and includes:
the terms of this Agreement and the commercial arrangements between the Parties;
any information that the other Party knows, or ought to know, is confidential to the Discloser;
the Discloser’s Intellectual Property Rights and any Intellectual Property Rights of third party suppliers or Third Party Suppliers DebtCol;
trade secrets, know-how, specifications, inventions, processes or initiatives which are of a confidential nature;
in relation to DebtCol, the DebtCol Materials; and
in relation to You, any Client Data,
but does not include any information (other than Personal Information) to the extent which:
it is in, or becomes part of, the public domain other than through breach of this Agreement or an obligation of confidence owed to the Discloser;
the Recipient can prove by contemporaneous written documentation: (i) it was already known to it at the time of disclosure by the Discloser; (ii) it was independently developed by the Recipient without reference to the Confidential Information of the Discloser; or (iii) the Recipient acquired it from a source other than the Discloser or any of its Representatives, where such a source is entitled to disclose it on a non-confidential basis
Consequential Loss means Losses that are special, indirect, incidental, punitive or consequential, including: loss of revenue, loss of profits or savings, loss of opportunity, loss or damage to or corruption of data, loss of goodwill, loss of reputation, whether arising in equity, for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise; and where such Losses may not reasonably be considered as arising naturally or directly from the event by which they are caused.
Consumer Law means:
In Australia: Schedule 2 of the Competition and Consumer Act 2010 (Cth), any equivalent State or Territory legislation, and any equivalent applicable provisions of the Australian Securities and Investments Commission Act 2001 (Cth); and
In New Zealand: the Fair Trading Act 1986 (NZ).
Data Breach means the accidental or unlawful destruction, loss, alteration, or unauthorised disclosure of, or access to:
where You are the Recipient, the DebtCol Materials transmitted, stored or otherwise processed by You in connection with this Agreement; or
where DebtCol is the Recipient, Client Data transmitted, stored or otherwise processed by DebtCol in connection with this Agreement.
DebtCol Material means DebtCol Confidential Information, DebtCol Services, DebtCol environment and systems, databases, platforms and models, including any other material provided or supplied by DebtCol to the Client, or otherwise accessed by the Client or its representative in the use of the DebtCol Services, and includes all Modifications to those materials.
DebtCol Services means the Software, and any administration, consultation, installation, Customer Support Services, training or other services that accompany the Software being provided by DebtCol to the Client pursuant to this Agreement.
Derivative Work means a new original work or other works or materials created by You based wholly or partly upon (whether by using, incorporating, adapting, altering, modifying or other nature) the DebtCol Materials.
Discloser means the Party disclosing Confidential Information and/or Personal Information (as applicable) to the other Party (or its Representatives) in connection with this Agreement.
Effective Date is defined as in clause 1.3.
Fees is defined as in clause 10.1.
Flexi Amount means the monthly fee payable by You for the number of Flexi Users which have been added during the Term.
Force Majeure Event means any circumstances, acts or omissions beyond a Party's control including strikes or industrial disputes, acts of God, epidemics and pandemics, acts of government, declared states of emergency, refusal of licence, failures or outages of any utilities (including telecommunications and data communication equipment or services), denial of service attacks, fire, explosion, floods, cyclone, tsunami or other extreme weather events, aircraft unserviceability or unavailability, war, terrorism or civil disturbance, or impossibility of obtaining material and/or data.
GST has the meaning given to:
where the currency is in AU$: that term under A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
where the currency is in NZ$: goods and services tax in the Goods and Services Tax Act 1985 (NZ),
(together, GST Law).
Initial Term means an initial term of either twelve (12), twenty four (24) or thirty six (36) months as specified on your Order Form, and which commences on and from the Effective Date.
Intellectual Property or Intellectual Property Rights means all industrial and intellectual property rights throughout the world protected or recognised at Law and includes all current and future registered and unregistered rights relating to:
(a) trade marks, business names, domain names, copyright works, databases, software, circuit layouts, designs, patents, trade secrets, know-how, inventions and discoveries, and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967; and
(b) any application or right to apply for the registration of any of the rights referred to in paragraph (a) above.
Law means all applicable common law, principles of equity, legislation, statutes, and regulations (and consolidations, amendments, reenactments or replacements of any of them) in the Territory or any other applicable jurisdiction.
Loss means all liabilities, losses, damages, outgoings, costs and expenses including reasonable legal costs (on a solicitor-client basis) and any penalties or fines imposed by a regulatory authority
Modifications means all enhancements, modifications, updates, improvements, configurations and derivative works relating to or in connection with the DebtCol Materials or DebtCol Services.
Monthly Amount means the committed monthly fee payable by you for the number of Permitted Users of the DebtCol Services during the Term as specified on your Order Form/s and as updated from time to time in accordance with this Agreement.
Moral Rights means any moral rights including the rights described in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended and revised from time to time), being “droit moral” or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth) or any other Law in the applicable jurisdiction), that exist or that may come to exist, anywhere in the world.
Notifiable Data Breach means a Data Breach or any other data breach that is notifiable to a Regulator under applicable Privacy Laws in respect of Personal Information which is disclosed to or received by a Party under or in connection with this Agreement.
Order Form means the commercial agreement signed by You which includes your contact details, the number of initial Permitted Users, the Initial Term, and the initial Monthly Amount and any Service Charges payable for the DebtCol Services.
Party means a party to this Agreement and Parties means the both of them.
Permitted Users means Your Representatives who are required to use the DebtCol Services for the Permitted Purpose and have been allocated user credentials to the Software in accordance with this Agreement. For clarity, this term includes any Flexi Users.
Permitted Purpose means Your internal business debt collection purposes.
Personal Information means any 'personal information' or ‘personal data’ as that term is defined in applicable Privacy Laws and which is disclosed by or on behalf of the Discloser to the Recipient or its Representatives under this Agreement.
Privacy Laws means:
In Australia: the Privacy Act 1988 (Cth) and any other applicable state or territory privacy laws, rules or regulations including the Australian Privacy Principles, Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth).
In New Zealand: means all applicable privacy or data protection laws relating to the collection, use, processing, disclosure, storage or granting of access to the Personal Information applicable to the relevant Party (to the extent a Party is subject to or required to comply with such Laws including under this Agreement), and includes the Privacy Act 2020 (NZ) and the New Zealand Information Privacy Principles which form part of the Act, and the Unsolicited Electronic Messages Act 2007; and all applicable binding privacy codes, policies or compliance notices
Privacy Policy means DebtCol’s Privacy Policy located at https://debtcol.com.au/terms/
Recipient means the Party in possession or control of Confidential Information and/or Personal Information (as applicable) disclosed to it by the other Party (or its Representatives) in connection with this Agreement.
Regulator means:
In Australia: means any third party body or agency having regulatory or supervisory authority over any part of the business or affairs of the relevant Party through the operation of applicable Laws, and includes the Office of the Australia Privacy Commissioner.
In New Zealand: means any third party body or agency having regulatory or supervisory authority over any part of the business or affairs of the relevant Party through the operation of applicable Laws, and includes the New Zealand Office of the Privacy Commissioner.
Related Bodies Corporate:
in Australia: has the meaning as defined in the Corporations Act 2001 (Cth); and
in New Zealand: has the meaning given to that term ‘Related Company’ as that term is defined in the Companies Act 1993,
and Related Body Corporate has the corresponding meaning.
Representative means a Party and any of its personnel, officers, directors, contractors and subcontractors, associates, representatives and any other person who acts for or on behalf of that Party.
Service Charges means the fees payable by You for services accompanying the Software including installation, training, data conversion, or professional services (as relevant).
Software means the DebtCol web-based software or portal and the content available through it including data, information, documentation, form, templates, DebtCol Materials, and which is licensed or supplied to You by or on behalf of DebtCol under this Agreement.
Renewal Term has the meaning given in 2.2.
Tax Invoice has the meaning given to that term in GST Law.
Term means the Initial Term plus any Renewal Term.
Territory means the country where the contracting DebtCol entity is located.
Third Party Provider means any entity, agency, government department or other or organisation which provides a Third Party Product which may be integrated with the Software (such as MYOB, Xero, EziDebit, InfoTrack).
Third Party Product means any websites, platforms or applications offered by Third Party Providers which may be able to be integrated with the Software, and which are governed by the Third Party Provider’s own terms of use and privacy policies.
Representative means a Party and any of its personnel, officers, directors, contractors and subcontractors, associates, representatives and any other person who acts for or on behalf of that Party
User Credentials means any usernames, passwords, tokens and other authentication credentials for use by a Permitted User for the purpose of accessing and using the Software.