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  • Definitions

    1. “Account” means a unique account created for Subscriber to access the Subscription Services. 2. “Add-On Services” means additional services that may be added to a base subscription to the Subscription Services. 3. “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority. 4. “API Service” means the set of application programming interfaces and other development tools and services that enables Subscriber to obtain information from the ICSR Services. 5. “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the ICSR Services (if applicable). 6. “Group” means a unit of usage rights for the Subscription Services. Groups may be set for individual Clients, specific campaigns, etc. 7. “Professional Services” means time-and-materials services provided to Subscriber, such as consulting services, on-boarding support, etc. 8. “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of user profiles, or such other limits as are set forth in the Service Order. 9. “Service Order” means a document setting out the specific details of one or more specific ICSR Services to be provided to Subscriber, which is agreed upon by both parties. 10. “ICSR Services” means, collectively, Subscription Services, API Service, Add-On Services and Professional Services. 11. “Subscription Services” means the base subscription services provided by ICSR to Subscriber, as identified in one or more Service Orders. The Subscription Services include the use of web-based applications, technical support, and documentation such as user manuals and online help files. 12. “Agreement” means this Master Subscription Agreement. 13. “Beta Services” means ICSR services or functionality that may be made available to you to try at your option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description. 14. “Content” means information obtained by ICSR from publicly available sources or third party content providers and made available to you through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation. 15. “Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via help.ICSR.com or login to the applicable Service. 16. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. 17. “Marketplace” means an online directory, catalogue or marketplace of applications that interoperate with the Services and any successor websites. 18. “Non-ICSR Application” means a Web-based, mobile, offline or other software process or functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as ICSR or by a similar designation. 19. “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between you and us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. 20. “Free Services” means Services that ICSR makes available to you free of charge. Free Services exclude Services offered as a free trial and Purchased Services. 21. “Purchased Services” means Services that you or Your Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial. 22. “Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available online by Us, including associated ICSR offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-ICSR Applications. 23. “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business. 24. “We,” “Us” or “Our” means the ICSR.com Company described in Section 13 (Whom You Are Contracting With, Notices, Governing Law and Jurisdiction). 25. “You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
  • Service Orders

    a.   Subscribers will at times enter into separate Service Orders for other services. Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order. ICSR will provide, and Subscriber will pay for, all ICSR Services set out in each Service Order, subject to the terms of the Service Order and this Agreement.

    b.    Service Order Type. Service Orders will be one of the following types:

                     i.        New: A new Service Order sets forth the ICSR Services and applicable Scope Limitations.

                    ii.        Amendment: An amendment to a Service Order modifies an existing Service Order (e.g., to change the scope, add Add-On Services, or add Professional Services). The amendment will apply for the remainder of the term of the Service Order(s). For the avoidance of doubt, Subscriber must pay all outstanding fees for usage prior to the Service Order amendment date in accordance with the terms set forth in the previous Service Order(s).

                  iii.        Renewal: A renewal renews Subscriber’s existing ICSR Service subscription.

    c.    Service Orders must be executed by both parties to be valid.

     


     

  • Use of the Services

      1.  Use of the ICSR Services. Subject to the terms and conditions of this Agreement, ICSR grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right during the term of each Service Order to use the ICSR Services set out therein. Subscriber’s right to use the ICSR Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations, the terms of the Service Order and this Agreement. If the Service Order permits usage by Clients, such Clients may use the ICSR Services in accordance with the terms of this Agreement. Subscriber will be liable for all use of the ICSR Services by its Clients.
      2.  Access and Users; Groups. Subscriber is responsible for managing access to its Account. Subscriber may permit its agents or service providers to access the ICSR Services through its Account, provided that Subscriber ensures that any person or entity using its Account comply with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. If Subscriber uses the ICSR Services on behalf of its Clients or if it grants access to the ICSR Services to its Clients, Subscriber will be responsible for ensuring that such Clients are not able to access confidential or proprietary information of another Client. Subscriber may only assign one Client to a Group and may not grant access to one Client’s Group to another Client or third party without the assigned Client’s consent.
      3.  Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in the applicable Service Order, ICSR will provide Subscriber with technical support services relating to the ICSR Services by chat or email from 9am-5pm, Monday through Friday, excluding Australian holidays.
      4.  Use Restrictions. Subscriber may use the ICSR Services solely for its own internal business operations or on behalf of Subscriber’s Clients. Subscriber may not resell ICSR Services to third parties. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the ICSR Services; (b) use the ICSR Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the ICSR Services, or (d) reverse engineer any element of the ICSR Service, or use the ICSR Services or any of ICSR’s Confidential Information (as defined below) to create a product that competes with the ICSR Services. To the extent that Subscriber uses Twitter data through the ICSR Services, Subscriber will comply with the Twitter terms of service located at http://twitter.com/tos. You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-ICSR Application to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-ICSR Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use of any of Our Services in a manner that violates Our Acceptable Use and External Facing Services Policy, or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
      5.  Compliance with Laws. Subscriber will use the ICSR Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party.
      6.  Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the ICSR Services and immediately notify ICSR in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the ICSR Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by ICSR to prevent or terminate unauthorized use of the ICSR Services.
      7.  Right to Suspend Services. ICSR may suspend Subscriber’s or any Client’s use of the ICSR Services if ICSR reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the ICSR Services or to prevent an ongoing violation of any applicable laws or regulations.  ICSR will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the ICSR Services to the extent necessary to prevent such unauthorized use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, ICSR may, without limitation to any of its other rights or remedies, suspend performance of the ICSR Services until it receives all amounts due.
      8.  Reservation of Rights. ICSR grants to Subscriber a limited right to use the ICSR Services under this Agreement. Subscriber will not have any rights to the ICSR Services except as expressly granted in this Agreement. ICSR reserves to itself and its licensors all rights to the ICSR Services not expressly granted to Subscriber in accordance with this Agreement. ICSR and its licensors retain all copyright, patent, and other intellectual property rights in and to the ICSR Services.
      9.  Use of API. Subscriber’s use of the API Service is subject to the additional terms set forth in Exhibit A.
      10. Usage Limits Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If you exceed a contractual usage limit, you must pay for excess usage.

  • Fees and Payment

      1.  Fees. Subscriber will pay ICSR the fees specified in each applicable Service Order. If Subscriber orders additional ICSR Services or changes the ICSR Services it is receiving, the fees for such additional or changed services will commence on the activation date listed in the Service Order and will be reflected on Subscriber’s monthly invoice. Partial months will not be prorated. All amounts payable under this Agreement are denominated in Australian dollars, and Subscriber will pay all such amounts in Australian dollars.
      2.  Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts due within fourteen (14) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that Subscriber notify ICSR of any such dispute in writing prior to the date they would otherwise be due, and that Subscriber cooperates with ICSR in promptly resolving such dispute. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by ICSR to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
      3.  Taxes. Other than net income taxes imposed on ICSR, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from its purchase or use of the ICSR Services. Prices are inclusive of GST only where they are stated to be inclusive of GST and exclusive of GST in all others circumstance and where stated to be exclusive of GST. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order.
  • Term and Termination

    1.  Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are outstanding.
    2.  Service Order Term. Each Service Order will commence on the specified effective date and will continue for the initial term specified in the applicable Service Order (“Initial Term”) unless the Service Order is terminated earlier in accordance with the terms of this Agreement. The minimum initial term is 1 annual period, whether payment is made upfront or on a pro-rata basis.
    3.  Auto-renewal. Unless auto-renewal option is expressly specified as not in effect in the Service Order, the Service Order will automatically renew for additional successive one-year terms unless either party provides written notice to the other at least thirty (30) days before the end of the then-current term that it does not want to renew. The Initial Term and any auto-renewal terms shall be, collectively, the “Term.”
    4.  Termination for Cause. Either party may terminate a Service Order or this Agreement (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of the notice period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    5.  Termination without Cause. Either party may terminate a Service Order or this Agreement (i) upon thirty (30) days written notice to the other party prior to the expiration of the current annual period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Both parties are bound for the annual term, each term, whether payment is in advance (reduced) or paid monthly pro-rata. Should the subscriber wish to terminate without cause due to a change in circumstance or of mind, the remaining pro-rata payments up to and including the remainder of the term will fall immediately due. Should the provider wish to terminate without cause due to a change in circumstances or of mind, they will deliver to the subscriber a copy of the website and database (not for resale or other external use), and offer all reasonable (fee per hr) assistance to allow the subscriber to host their own solution whether on premises or in the cloud.
    6.  Post-Termination Obligations. If this Agreement or a Service Order is terminated for any reason,  Subscriber will pay to ICSR any fees or other amounts that have accrued prior to the effective date of the termination,  any and all liabilities accrued prior to the effective date of the termination will survive,  Subscriber will discontinue all use of the ICSR Services, and ICSR will delete any Subscriber data in its systems related to the terminated Service Order within one hundred eighty (180) days after the effective date of termination. All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
  • Confidentiality

      1.  Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of ICSR or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
      2.  Protection of Confidential Information. Each of the parties agrees: (a) not to disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those agents, advisors, or subcontractors who have a reasonable need to access such information, and who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement. If a party is required by law to disclose the other party’s Confidential Information, it will promptly notify the other party (providing notice prior to disclosure if permitted by law), and provide reasonable assistance in seeking protection of such Confidential Information.
  • Warranties and Disclaimer

      1.  Mutual Warranties. Each party represents and warrants to the other that:  this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and  no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
      2.  DISCLAIMER. Except for the express representations and warranties stated in this section 7, ICSR makes no additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. ICSR expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement on its behalf and on behalf of its licensors. ICSR relies on third party data sources for information and therefore does not warrant that any information provided through the ICSR services is accurate or complete or that any information provided through the ICSR services or third party data will always be available.
      3. OUR RESPONSIBILITIES

     

                                                        i.     Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable ICSR standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, Non-ICSR Application, or denial of service attack.

                                                       ii.     Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing. Except with respect to a Free Trial, to the extent that ICSR processes any Personal Data (as defined in the DPA) contained in Customer Data, on Customer’s behalf, in the provision of the Services, the terms of the data processing addendum at http://ICSR.com.au/dataprocessingaddendum.pdf ("DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer's signing of this Agreement, and an applicable Affiliate's signing of an Order Form, shall be treated as signing of the Standard Contractual Clauses and their Appendices.

                                                      iii.     Our Personnel. We will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein.

    d.      Beta Services. From time to time, we may make Beta Services available to you at no charge. You may choose to try such Beta Services or not in your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-ICSR applications and content, shall apply equally to your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

     


  • Intellectual Property

    a.    Defence and Indemnification. ICSR will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the ICSR Services infringe or misappropriate any patent, copyright, trade secret, or trademark, right of any third party, and indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. ICSR’s obligation under this section is contingent on Subscriber giving ICSR prompt written notice of the Claim; Subscriber granting ICSR full and complete control over the defence and settlement of the Claim; and Subscriber providing assistance in connection with the defence and settlement of the Claim as ICSR may reasonably request, at ICSR’s cost. Subscriber will not defend or settle any Claim eligible for indemnification under this section without ICSR’s prior written consent.

    b.   Infringement Remedy.  If Subscriber is enjoined or otherwise prohibited from using the ICSR Services or a portion thereof based on an allegation that the ICSR Services violate any third party intellectual property right (including a Claim), or if ICSR reasonably determines that such prohibition is likely, then ICSR will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the ICSR Services; (b) modify the allegedly infringing portions of the ICSR Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the ICSR Services with non-infringing items of substantially similar functionality.  If ICSR determines that the foregoing remedies are not commercially reasonable, then ICSR may terminate the impacted Service Order, or portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by ICSR for any ICSR Services that have not yet been performed at the time of termination.  

    c.     Exclusions from Obligations. ICSR will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the ICSR Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination;  any aspects of the ICSR Services that are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications;  use of the ICSR Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; Subscriber’s failure to use the ICSR Services in accordance with written instructions provided by ICSR, if the infringement or misappropriation would not have occurred but for such failure; or  any modification of the ICSR Services not made or authorized in writing by ICSR where such infringement or misappropriation would not have occurred absent such modification.

    1.       Limited Remedy. This Section 8 states ICSR’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the ICSR Services.

    2.      INTELLECTUAL PROPERTY TERMS

    a.   The Licensor grants non-exclusive, transferable, non-revocable license to the Subscriber to use the Software on and from the date of this agreement for the permitted purpose.

    b.   The Subscriber may not assign the License.

    c.    The Subscriber is prohibited from making any copies, archival or otherwise, of the Software. Subscriber is further prohibited from using the Software in any manner other than its permitted purpose.

    d.   The Subscriber may not sublicense the license.

    e.   The Subscriber cannot in list a third party to breech any of this contracts terms and conditions.

    f.    The Subscriber is not permitted to reverse engineer, reverse assemble or reverse compile or otherwise endeavour to obtain the source code from the object code.

    g.   The Subscriber acknowledges and agrees the Licensor is the owner of all Intellectual Property Rights in the Software.

    h.   The Subscriber must not alter, remove or obscure any trade mark or copyright symbol or legend or other proprietary mark on the Software.

    i.     Where the Subscriber request for modification or adapt new code to be written, the parties agree that the Licensor will own the Intellectual Property Rights in that modified and/or adapted code.

    j.     The Subscriber is not permitted to sell, charge, and mortgage or otherwise encumber the Software in any way.

    k.    The Subscriber is solely responsible for the use, supervision, management and control of the Software.

    l.     The Subscriber will ensure that the Software is at all times protected from access, use or misuse and damage and destruction by any person not authorized by either the Licensor or the Subscriber, and the Subscriber will notify the Licensor immediately if it becomes aware of any unauthorized use of the Software


  • Subscriber Indemnification

    Subscriber will defend ICSR from any actual or threatened third party Claim arising out of or based upon Subscriber’s breach of Section 3, and indemnify ICSR from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim.

    Subscriber’s obligation under this section is contingent on:

    (a) ICSR giving Subscriber prompt written notice of the Claim;

    (b) ICSR granting Subscriber full and complete control over the defence and settlement of the Claim;

    (c) ICSR providing assistance in connection with the defence and settlement of the Claim as Subscriber may reasonably request; and

     (d) ICSR’s compliance with any settlement or court order made in connection with the Claim, provided that Subscriber may not agree to any settlement that imposes any obligation on ICSR without ICSR’s consent.

    ICSR will not defend or settle any Claim eligible for indemnification under this section without Subscriber’s prior written consent. .

  • Limitations of Liability

    a.    Disclaimer of Indirect Damages. Except for liability arising out of a breach of section 6, violation of the other party’s intellectual property rights, or either party’s gross negligence or wilful misconduct, neither party will, under any circumstances, be liable to the other party for consequential, incidental, special, or exemplary damages arising out of or related to this agreement, including but not limited to lost profits or loss of business, even if a party is apprised of the likelihood of such damages occurring.

    b.    Cap on Liability. Except for liability arising out of a breach of section 6, the parties’ indemnification obligations under sections 8 and 9, violation of the other party’s intellectual property rights, or either party’s gross negligence or wilful misconduct, under no circumstances will either party’s total liability of all kinds arising out of or related to this agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid by subscriber to ICSR under the applicable service order during the twelve months preceding the claim (determined as of the date of any final judgment in an action).

    c.     Independent allocations of risk. Each provision of this agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this agreement between the parties. This allocation is reflected in the pricing offered by ICSR to subscriber and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this agreement. The limitations in this section 10 will apply notwithstanding the failure of essential purpose of any limited remedy.

  • General

    a.    Relationship. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from collecting, licensing, or otherwise dealing in data or information from any third party.

    b.    Export Compliance and Anti-Corruption. The ICSR Services may be subject to export laws and regulations of Australian and other jurisdictions. Each party represents that it is not named on any. Government denied-party list. Subscriber shall not permit users to access or use the ICSR Services in an embargoed country or in violation of any export law or regulation. Subscriber further represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).

    c.     Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfil all of the assigning party’s obligations under this Agreement.

    d.    Subcontractors. ICSR may utilize a subcontractor or other third party to perform its duties under this Agreement, for example writing of new code, so long as ICSR remains responsible for all of its obligations under this Agreement.      

    e.    Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by fax, e-mail, mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement (or the applicable Service Order). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or sending an email or fax.

    f.     Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

    g.    Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of NSW, Australia. without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Sydney, New South Wales in connection with any action arising out of or in connection with this Agreement.

    h.    Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

    i.      Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the ICSR Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the ICSR Services will immediately terminate.

    j.      Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the ICSR Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the ICSR Services that ICSR may provide. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. ICSR will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless ICSR specifically agrees to such provision in writing and signed by an authorized agent of ICSR. This Agreement may be executed in multiple counterparts, and may be acknowledged or submitted online, signed electronically, returned via email or via facsimile.

  • Scope, Additions, Upgrades and Customisation

      1. The service is sold as is. The service is made up of a database, a full website and a limited mobile site to access and amend the data.
      2. The website was designed as an internal mechanism to assist in the smooth efficient running of the ASAP Group of Companies and is fit for its purpose.
      3. Each subscriber will have requirements that differ from the service model. One of the significant advantages of this service over other pre-packaged software is the ability of the licensee to amend both database and websites to suit different needs upon request (service order).
      4. Amendments, additions or repairs to either the website or database should be registered by the subscriber in the Code Request page and answered by the licensee within 2 business days. The licensee will add comments and an estimate of fees and expected time to bring the change live. The comments, estimate and subsequent costs should be agreed to and signed off by the subscriber prior to work commencing. Each request constitutes a service order.
      5. Should the licensee deem the Amendments, additions or repairs to be globally useful, the licensee will offer a fee return to the subscriber, the subscriber may either choose to accept the fee return and allow the idea to be copied to all, or will refuse the return and the licensee will subsequently not copy this code for any other users.
  • Schedule 1 - Additional Services and Fees

     A. During the Term of this Agreement, the Subscriber will pay ICSR in advance for their use of the Software and any other chargeable service set out in the schedule.

    B. Subscriber agrees to pay ICSR any Additional User Fees as set out in the schedule or the ICSR website per user per Term of this Agreement.

    C. Subscriber agrees to pay ICSR a Fee as set out the schedule for data transferred into the software.

    D. Subscriber agrees to pay ICSR a Fee as set out in the schedule for any additional code required to be written at the request of the Subscriber that is not already included in the Subscribers nominated package.

    E. Subscriber agrees to pay ICSR the Fee as set out in D above plus all reasonable travel and accommodation costs when required on site outside Sydney or Melbourne metro.

    F. Subscriber agrees to pay ICSR a Fee as set out in the schedule for any additional training required that is not already included in the Subscribers nominated package.

    G. Subscriber agrees to pay ICSR a Fee as set out in the schedule for SMS services.

    H. Subscriber agrees to pay ICSR a Fee as set out in the schedule for additional storage.

    I. All fees set out in the schedule are in Australian dollars and include GST.


    Please notes that, depending upon which package you select, some of the below may be included, please ask for specific help.

    Service

    FEE

    PER

    HOW PAID

    Training On site (Metro)

    Training – Skype

    Design & Customisation

    Database Integration

    SMS

    Extra transactions

    Tracking App

    Extra GoogleAPI Calls

    Video Receipt App

    Fixed Number

    Unique Domain Name*

    Extra Emails

    Encryption (HTTPS)

    Extra Storage Space

    $190

    $90

    $170

    $170

    $0.05

    $44

    $12

    $0.01

    $70

    $45

    $182

    $35

    $30

    $42

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    + gst

    Hour

    Hour

    Hour

    Hour

    sms

    10,000 month

    download

    Call

    download

    month

    annum

    10,000 month

    month

    1gb per month

    invoice

    invoice

    invoice

    invoice

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

    auto-billed and receipt

     


     

    * not ending in logon.net.au (prices and availability will vary)

    Extra Users

    (Users can be replaced, therefore old staff can be replaced by new staff with no change to user list)

    As per website pricing

  • Schedule 2 - The Trial

     

    a.      The Subscriber wishes to ensure the system will suit their business prior to committing to a full price annual subscription or sale.

    b.      The Licensee will offer the subscriber a Trial limited by time and users on the proviso that the subscriber genuinely wishes and is ready to subscribe fully to the service.

    c.      The Trial will be valid for one year from the commencement of contract.

    d.      Upon the conclusion of the Trial, should there be no genuine written dispute or unresolved grievances, the Subscriber agrees to auto-renewal of the services for the full annual advertised price as per the ICSR website https://icsr.com.au/pricing.html

     

     

    Trial Limitations

     

    a.      The trial database and website will not be backed up and operating on dual servers as is usual, unless a setup fee is paid.

    b.      The trial database will not be fully reflective of the subscriber’s image or look and feel as is usual, unless a setup fee is paid.

    c.      The trial will not include the usual data integration period, unless a setup fee is paid. The subscriber will be responsible for entering the Trial data into tables provided by the licensee.

     

     

    Trial Costs

     

    The limited trial will be made available for maximum of 1 year at the monthly sole contractor rate of $2880 + GST paid upfront or $390 + GST paid monthly pro rata.

    During this Trial term, once the subscriber signs up to a full service plan, the subscription amount paid pro-rata or upfront will be deducted from the annual subscription for those services.

     

     

    Trial Deposit

    The subscriber will make available a further holding deposit of $500 + GST to allow for some of the additional services required during set up, such as sms, data integration and customisation.

    Once the subscriber signs up to a full service plan, this deposit will be refundable against the first month’s billing for those services.

    If the licensee has failed to deliver expected services during the trial, ie a genuine written dispute or grievance remains unresolved, the unused portion of the deposit will be refunded.

    Any items used against the deposit will be itemised on an invoice.

    If the licensee fails to follow through with their order due primarily to a change of mind or circumstance, the deposit will be forfeited in compensation and the full cost of any additional services will be immediately payable on presentation of an invoice.

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