Kalix Terms & Conditions

  • 1. Introduction to Kalix and your agreement with us

    • 1.1 We, FC Software Solutions Pty Ltd (ABN 53 164 916 894), have developed a proprietary client management and record keeping tool called Kalix (Kalix).
    • 1.2 Kalix is delivered as software as a service (SaaS) via a web interface, which is hosted and maintained by us (Service).
    • 1.3 You and we agree that this agreement (together with our privacy policy which is incorporated by reference) sets out the terms and conditions on which we provide you with access to this Service. Unless we expressly say otherwise, the terms of this agreement will also apply to any enhancement or mobile application (that we may introduce from time to time) allowing access to Kalix.
    • 1.4 These terms are important and you must read them carefully and contact us with any questions before you use Kalix.
    • 1.5 If you are acting behalf of, or are representing, an Organisation, each user of that Organisation must independently register as a user and accept the terms of this agreement.
    • 1.6 By accessing or using Kalix, you acknowledge and agree that you have had sufficient chance to read and understand the terms and you agree to be bound by them. If you do not agree to the terms, please discontinue using Kalix.
  • 2. Your licence to use Kalix

    • 2.1 Upon provisioning by us, Kalix will become accessible to you via a web interface through our website (www.kalixhealth.com).
    • 2.2 We grant you a personal, non-exclusive, non-transferable licence to use Kalix in accordance with the terms of this agreement within the country (or countries) in which you operate your business only.
    • 2.3 You may then use Kalix for as long as you:
      • a) have our agreement to use it;
      • b) pay all fees and charges due to us in respect of the use of Kalix as and when due; and
      • c) comply with the terms and conditions of this agreement.
    • 2.4 If you are located in the United States of America, we may ask you to sign a business associate agreement (BAA) around the same time that you accept this agreement.

      The BAA addresses the requirements under the Health Insurance Portability and Accountability Act of 1996, (as amended) with respect to "business associates", as defined under the privacy, security, breach notification and enforcement rules at 45 C.F.R. Part 160 and Part 164 (HIPAA Rules).

      The BAA is intended to ensure that protected health information (as defined in the HIPAA Rules) is dealt with in accordance with the HIPAA Rules.

      To the extent that the BAA is inconsistent with the terms of this agreement, the terms of the BAA will govern. All terms of this agreement not in conflict with the BAA remain in full force and effect.
    • 2.5 If you are located in Canada, we may ask you to sign a data and privacy agreement (DPA) around the same time that you accept this agreement.

      The DPA aims to address how we both deal with personal health information (as defined in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5), or other applicable Canadian privacy law).

      To the extent that the DPA is inconsistent with the terms of this agreement, the terms of the DPA will govern. All terms of this agreement not in conflict with the DPA remain in full force and effect.
    • 2.6 You must take all necessary steps to ensure that your employees, contractors, agents or anyone else with access to Kalix complies with the terms of this agreement. You must inform us of anyone who uses (or requires use of) Kalix. Those users must independently register and accept the terms of this license to access Kalix. Apart from this, you must ensure that you do not provide or share access to Kalix to anyone and you must use reasonable efforts to prevent unauthorized third parties from accessing Kalix.
    • 2.7 A breach of this agreement by any person that you provide access to Kalix, or by any of your employees, contractors or agents, whether or not their access is valid according to this agreement, is deemed to be a breach of this agreement by you.
  • 3. Fees that you need to pay

    • 3.1 Depending on whether you choose either a monthly or yearly subscription, you must pay us either a monthly or annual service fee for the use of Kalix in accordance with your application to register to use Kalix.

      For monthly plans, we automatically charge your credit card when your trial period ends and then on same date each month. You can check your Kalix payment screen to find out the date of your next payment.

      For yearly plans, we charge your credit card when your trial period ends. This is the date that your yearly plan starts. Your subscription will be automatically renewed after one year and the yearly subscription price will be deducted from your credit card.
    • 3.2 There is no fee for any free trial period offered by us.
    • 3.3 You can increase or decrease your weekly number of appointment hours at any time. You can also change from a monthly to a yearly subscription. When you change plans, you will be charged pro-rata and the new plan will start immediately. No refunds or credits will be issued for decreasing your weekly number of appointment hours.
    • 3.4 We may terminate or suspend your licence to use Kalix if you fail to pay the service fee by its due date in accordance with clause 15.1.
    • 3.5 Despite clauses 3.1 and 3.4 and without prejudice to our any of our rights, we may agree to alternative payment plans or payment terms in writing.
    • 3.6 We may amend our fees on 1 month’s notice in writing to you.
    • 3.7 If you cancel your monthly subscription, this agreement terminates, we will not charge you again and there is no cancellation fee. However, you are not entitled to a refund or credit for the unused part of your monthly subscription.
    • 3.8 If you cancel your yearly subscription, this agreement terminates, we will not charge you again and there is no cancellation fee. However, you are not entitled to a refund or credit for the unused part of your yearly subscription.
    • 3.9 The only other charges associated with using Kalix are to send automated reminder messages to your clients via SMS or Text-to-voice. This is an optional service. You may purchase credit in advance only, topping up as required.
    • 3.10 All fees stated are exclusive of taxes, levies or duties imposed by the tax authorities. If your company is liable to pay GST or other taxes e.g. sales tax, you will be responsible for paying any tax fees on top of the subscription fees.
    • 3.11 If you have any questions about charges made to your account, please contact us immediately. If there are charges made in error, we will, at our election, credit your account or credit card account for the appropriate amount.
    • 3.12 A minimum of one subscription is required per organization or account. If your subscription is for multiple child organizations, you will be charged a minimum of one subscription for each child organization.
  • 4. Ownership of intellectual property, using information and other rights

    • 4.1 Nothing in these terms constitutes a transfer of any intellectual property rights.
    • 4.2 We are the sole and exclusive owner of all rights (including intellectual property rights, together called Rights) in Kalix and all Rights in customisations, modifications, enhancements, adaptations, updates or replacements of Kalix.
    • 4.3 We also own all Rights in customisations, modifications, enhancements, adaptations, updates or replacements to Kalix that are made at your request, or specifically for you, or which incorporates your know-how, ideas, requests or suggestions.
    • 4.4 Despite clauses 4.1 to 4.3, we acknowledge that all information (of any description) which you disclose to us through your use of Kalix is your confidential information, as long as that information is not available in the public domain. You acknowledge and agree that your know-how, ideas, requests or suggestions that have been incorporated into Kalix is our confidential information.
    • 4.5 You consent to:
      • a) any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.
      • b) us using your de-identified data and de-identified patient data for statistical, audit, compliance and marketing purposes;
      • c) disclosure by us of any information to our related entities (as defined by section 9 of the Corporations Act 2001 (Cth)).
    • 4.6 The consents in clause 4.5(a), (b) and (c) will survive any termination of these terms.
  • 5. Marketing by us and within Kalix

    • 5.1 You consent to receiving promotional, marketing material or information updates from us, including by way of email delivery. You can contact us at any time to let us know that you no longer want to receive these communications from us.
    • 5.2 You acknowledge that:
      • a) we may place advertisements or other promotional or marketing information within Kalix;
      • b) any links to third party content or websites is not an endorsement, sponsorship or approval of that linked third party content or website.
  • 6. Using Kalix

    • 6.1 You must:
      • a) be a registered user to access Kalix;
      • b) provide accurate, complete and current information when you register.
      • c) ensure that the Kalix does not contain material which is unlawful;
      • d) comply with the current editions of all technical and instructional manuals and documentation provided by us from time to time;
      • e) comply with any operational guidelines or emergency directions issued by us;
      • f) promptly report to us any errors, defects or malfunctions you experience or observe, in as much detail as you are reasonably able to;
      • g) comply with all laws that are applicable to you;
      • h) comply with any rules or terms which we may publish from time to time;
      • i) not do anything that is detrimental to us, our business, our officers, employees, distributors or agents; and
      • j) before using Kalix, obtain all consents (including consents for you to disclose information to us and consents for us to use and store information) that are necessary under any law or contract that is applicable to you. You must comply with our request for confirmation that you have obtained these consents. You must indemnify us against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of collection, use, disclosure, storage or other involvement with any information relevant to your relationship with us under this agreement and any information used by you in Kalix.
    • 6.2 You must not yourself (or permit anyone to):
      • a) do anything calculated to damage or impair Kalix or the SaaS server;
      • b) access or control (or attempt to access or control) the SaaS server except through the web interface that we provide access through;
      • c) purport to grant any interest in, sub-licence of or derivative right to use Kalix except as permitted by this document – except that you may allow access to your clients to enable them to view your data;
      • d) do anything that is detrimental to us, our business, our officers, employees, distributors or agents;
      • e) distribute, sublicence or copy Kalix in any format, including, but not limited to, other print or electronic publication service or product;
      • f) decompile, disassemble Kalix, analyse or otherwise examine Kalix for the purpose of reverse engineering Kalix or to build a competing product (except to the extent this restriction is expressly prohibited by applicable law);
      • g) delete or in any manner alter any notices, disclaimers or other legends contained in Kalix or appearing on any screens, documents or other materials obtained through use of Kalix;
      • h) use Kalix to provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through access or use of Kalix;
      • i) reproduce, republish, upload, post, transmit or distribute Kalix, or any portion of Kalix, including the CPT codes, or facilitate or permit any third party to do so;
      • j) modify or prepare derivative works from Kalix;
      • k) use any device or software to interfere or attempt to interfere with the proper operation of Kalix;
      • l) transmit Kalix or allow access to Kalix over a network or a public computer-based information system - including the Internet - which permits access to a greater number of users than has been notified by you to us;
      • m) use Kalix in multiple user arrangements unless that use is covered by a separate license for each user;
      • n) rent, lease, distribute or in any way transfer use of Kalix to any third party, or commercially exploit Kalix;
      • o) use Kalix or any service provided by us in any manner that involves unsolicited electronic messages or text messages;
      • p) contravene any person’s rights (of any description) through the use of Kalix;
      • q) use Kalix in any way that may be regarded by us, on reasonable grounds, to be unacceptable (we may from time to time notify you of the circumstances which we regard as unacceptable); or
      • r) make or permit any access to, or use of, Kalix unless you have in place appropriate strategies, in addition to (and not reliant on) your use of Kalix to manage all risks in your business.
    • 6.3 You agree that we may immediately suspend all or any part of the Services, and remove or disable access to Kalix, if you are (or if we reasonably believe that you are) in breach of any term in this clause 6.
  • 7. Your warranties and indemnity to us

    • 7.1 You:
      • a) represent and warrant to us that you have the legal capacity and authority to accept this agreement;
      • b) if you accept this agreement on behalf of an organisation or entity (Organisation), warrant and represent that you are authorized to act on behalf of that Organisation and that your acceptance of the terms of this agreement creates a legally enforceable obligation of the Organisation;
      • c) represent and warrant to us that you have all necessary rights to give the consents set out in clause 4.5;
      • d) represent and warrant to us that you have all rights, licences, authorisations and consents required to use Kalix, including in respect of your data;
      • e) without limiting paragraph (d) or (f), you represent and warrant to us that you have obtained your clients’, patients’, employees’, suppliers’ and contractors’ consents to store their personal information and sensitive information within Kalix and that you have complied with all laws in relation to obtaining this consent; and
      • f) represent and warrant to us that you have obtained all authorisations and consents required under any law that is applicable to you from any relevant government authority and professional body and from your patients, clients, suppliers, contractors and employees for the overseas transfer information referred to in clause 18.
    • 7.2 To the fullest extent permitted under law, you agree to indemnify, defend, and hold us (including our directors, officers, agents and suppliers) harmless from any and all loss, costs (including legal costs on a full indemnity basis), liability, and expense arising from or related to:
      • a) your use of Kalix, including by your officers, employees, contractors or agents; or
      • b) any breach of this agreement.
  • 8. Access and security

    • 8.1 You must:
      • a) keep your account access details secure and confidential. Despite any other term in this agreement, you are solely responsible and liable for any activity done under your account;
      • b) subject to compliance with clause 2.4, only disclose your account access details to your own servants, agents or contracted consultants (your ‘people’) on a need-to-know-basis;
      • c) regularly change access passwords and keep records of all passwords used or disclosed, in accordance with good computer security practice;
      • d) if you become aware that account access details are in unauthorized hands:
        • i) change any compromised access password immediately;
        • ii) take any other step reasonably necessary to ensure that no-one suffers harm as a result; and
        • iii) inform us of the specific details of that compromised access and follow our reasonable directions. Our directions take precedence over paragraphs (i) and (ii) but do not displace your obligations under any law or the directions of any government authority; and
      • e) keep your computer system, network and internet connectivity secure and confidential in accordance with good computer security practice.
  • 9. User Documentation

    • 9.1 Where we provide any manuals, instructions, literature and other documentation supplied in connection with Kalix (User Documentation) are copyright to us and provided by way of loan only.
    • 9.2 You may make a reasonable number of copies of User Documentation to support your use of the SaaS service in accordance with this agreement, but all such copies are our property.
    • 9.3 If we issue updated or replacement User Documentation, you must replace all outdated User Documentation with it. We are not responsible for harm that may arise from your use of non-current User Documentation.
    • 9.4 When this agreement ends, you must return all existing User Documentation (including all copies of it) to us on request.
  • 10. Support

    • 10.1 Subject to the terms of the any service level agreement that we may have with you, if you require technical support we may choose to provide either:
      • a) email support; or
      • b) online support; or
      • c) phone support.
  • 11. Limitations on our obligations

    • 11.1 Our obligations under this agreement are limited to the express obligations set out in it.
    • 11.2 To avoid doubt, unless we say otherwise, nothing in this agreement obliges us to provide User Documentation, training or any other support in relation to Kalix. If such services, or other services, are to be provided, they will first be documented in writing.
  • 12. Your acknowledgements

    • 12.1 You acknowledge that:
      • a) connection to the internet poses significant security and virus threats, and that the use of regularly updated anti-virus software and a firewall is very important and your responsibility;
      • b) unless we agree otherwise in writing, we do not provide service levels or uptime for these services, and that scheduled maintenance, emergencies or unscheduled outages may occur from time to time which may leave the services unavailable or with limited functionality;
      • c) access to and use of Kalix may be impaired or prevented by a variety of factors that are beyond our control, including defects in your computer system and problems with internet connectivity between you and the SaaS server. We are not responsible for any such things or their effects. They do not constitute defects in Kalix;
      • d) we may configure Kalix, our systems and the SaaS Server and determine the nature and manner of our internal technical support in our absolute discretion;
      • e) you are solely responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all information inputted by you into Kalix. In addition, you acknowledge that Kalix does not detect faulty or aberrant input data, does not take into account all of the matters that should be considered in decision-making regarding matters of relevance to your business and should not be used as a substitute for your independent and appropriately qualified decisions regarding matters of relevance to your business;
      • f) we are not liable to you under this agreement or otherwise if and to the extent that your access to, or use of, Kalix is contrary to any obligations, including those owed under contract or any laws;
      • g) we may make Kalix (including information inputted by you into Kalix) and any other information (in any form) relevant to your relationship with us under this agreement available to any person who provides reasonable evidence to us of their right to this, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom that information pertains. You must indemnify us against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of acting in accordance with this paragraph (g).
  • 13. You may have Protected Rights

    • 13.1 There are laws that may apply to your relationship with us and this agreement. This includes the Competition and Consumer Act 2010 (Cth) (CCA). These laws may impose rights, warranties or guarantees (including consumer guarantees under the CCA) that cannot be excluded by us or this agreement. For the purposes of this agreement, these non-excludable rights, warranties or guarantees are called Protected Rights.
    • 13.2 This agreement must be read subject to your Protected Rights. Nothing in this agreement intends to exclude, restrict or modify any Protected Rights that are implied in this agreement or protected by law to the extent that the exclusion, restriction or modification would render this agreement (or any provision of this agreement) void, illegal or unenforceable.
    • 13.3 If Protected Rights apply, to the extent to which we are able to do so, our liability will be limited, at our option, to:
      • a) in the case of services:
        • i) the supplying of the services again; or
        • ii) the payment of the cost of having the services supplied again; and
      • b) in the case of goods:
        • i) the replacement of the goods or the supply of equivalent goods;
        • ii) the repair of the goods;
        • iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        • iv) the payment of the cost of having the goods repaired.
  • 14. Disclaimers and releasing us from liability

    • 14.1 Except where (and only to the extent that) clause 13 applies, you acknowledge and agree that:
      • a) any condition, warranty, guarantee, right or liability which would otherwise be implied in this agreement or protected by law is expressly excluded to the fullest extent permitted under law;
      • b) prior to entering into this agreement, you have been given a reasonable opportunity to examine and satisfy itself regarding all services which are the subject of this agreement and that, prior to entering into this agreement, you have availed itself of that opportunity;
      • c) at no time prior to entering into this agreement have you relied on our skill or judgment and that it would be unreasonable for you to rely on any such skill or judgment;
      • d) we make no warranty or representation that your use of Kalix will be uninterrupted or error-free or regarding the results that may be obtained from the use of Kalix, the security of Kalix, or that Kalix will meet your requirements;
      • e) we are not responsible for any Service delays, Service failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that Kalix may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
      • f) we are not liable to you for, and you release us from any Claim for, or any Contract Loss;
      • g) subject to paragraph (h), in no event shall our aggregate liability arising out of, or related to, this agreement, whether in contract, tort or under any other theory of liability, exceed one year's licence fees for you; and
      • h) if there is any loss or damage to your data, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data maintained by us.
  • 15. Minimum term and termination

    • 15.1 We may terminate the licence and this agreement:
      • a) immediately, at any time and without notice if you violate or breach any of the terms and conditions of this license – but in the case of breach arising from non-payment we may, in our absolute discretion, terminate in accordance with paragraph (b);
      • b) on 7 days’ notice to you, where you fail to pay money by its due date;
    • 15.2 If you breach any term of this agreement, you are also deemed to be in breach of any other agreement you have with us, and vice versa.
    • 15.3 Upon termination of this agreement, all of your rights and licences under this agreement will immediately cease.
    • 15.4 You must at all times indemnify us and hold us harmless (together with our officers, employees, contractors and agents) (those indemnified) from and against any loss (including legal costs and expenses and liability on a full indemnity and solicitor and own client basis) incurred or suffered by any of those indemnified arising from any Claims against those indemnified where such loss or liability was caused by a breach by you of your obligations under this agreement or any wilful, unlawful or negligent act or omission by you.
    • 15.5 These terms terminate automatically if, for any reason, we cease to operate Kalix.
  • 16. Backing up and restoring Kalix data

    • 16.1 Kalix includes the ability for you to download all of the data that we hold on our servers (to the extent that the data relates to your account). We recommend using this feature to backup your data and we are not responsible if you fail to do so.
    • 16.2 You are authorized to make copies of the CPT codes contained within Kalix for backup or archival purposes only. All notices of proprietary rights, including trademark and copyright notices, must appear on all back up or archival copies made by you.
    • 16.3 We use data storage technology (sometimes called positive data redundancy) where Kalix information is consistently held in multiple data centres that are geographically separate. The data is also stored in multiple locations within each data centre. We do this to safeguard Kalix information.
    • 16.4 Despite clause 16.1, we are able to restore data for you if you ask us to. We may, at our absolute discretion, charge a fee for this restoration.
  • 17. Confidentiality

    • 17.1 You and we must:
      • a) protect and keep confidential all confidential information incorporated or stored in Kalix or otherwise disclosed to each other in relation to this agreement (Confidential Information);
      • b) not use any Confidential Information except for the purposes of performing obligations under this agreement; and
      • c) not disclose Confidential Information to any person (except to your or our officers, employees and advisers who have a need to know for the purposes of this agreement or for providing professional advice) without the written consent of other party.
    • 17.2 The parties must take steps to ensure that those with access to Kalix are instructed to keep strictly confidential all Confidential Information owned by the other Party.
    • 17.3 Despite clause 17.1, Confidential Information does not include information which:
      • a) was lawfully known to or in the possession of a party prior to its disclosure by the other party; or
      • b) is or becomes generally available in the public domain, other than as a result of a breach of clause 17.1 or 17.2.
  • 18. Transborder data flows

    • 18.1 You acknowledge that:
      • a) our servers are located in the United States of America; and
      • b) any personal, sensitive or health information relating to you and your patients (protected information) may not be subject to the same privacy standards as in Australia or any other country.
      • c) if you give consent in clause 18.2, Australian Privacy Principle 8.1 will not apply;
      • d) you may not be able to seek redress in the U.S.; and
      • d) the server providers and other overseas recipients are subject to foreign laws that could compel the disclosure of protected information to a third party, such as an overseas authority and government.
    • 18.2 You agree and consent to us:
      • a) storing protected information on those servers in the United States of America; and
      • b) transferring protected information to those servers.
  • 19. The American Medical Association's CPT® Licensing Terms

    CPT® copyright 2012 American Medical Association. All rights reserved.
    • 19.1 Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT, and the AMA is not recommending their use. The AMA does not directly or indirectly practice medicine or dispense medical services. The AMA assumes no liability for data contained or not contained herein.
    • 19.2 CPT is a registered trademark of the American Medical Association.
    • 19.3 The terms in this section take precedence over any other conflicting term in this license to the extent of any inconsistency or conflict, unless prohibited, void, voidable or unenforceable at law or in equity.
    • 19.4 The following content used in Kalix is licensed from the American Medical Association (AMA) pursuant to a non-transferable, non-exclusive license, for the sole purpose of internal use by you within the United States only: (1) the AMA’s Version of ICD-9-CM; and (2) the AMA’s Version of HCPCS.
    • 19.5 The provision of updated CPT in Kalix is dependent on the continuing contractual relationship between us and the AMA.
    • 19.6 CPT is copyrighted by the AMA and is a registered trademark of the AMA. You acknowledge that the AMA holds all copyright, trademark, and other rights in CPT.
    • 19.7 Kalix and the CPT content contained in Kalix are provided “as is” without any liability to the AMA, including without limitation, no liability for consequential or special damages, or lost profits for sequence, accuracy, or completeness of data, or that it will meet your requirements, and that the AMA’s sole responsibility is to make available to us replacement copies of CPT content if the data is not intact; and that the AMA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in the CPT content.

      In no event will we or the AMA be liable for any consequential, punitive, special, incidental, exemplary, indirect or other similar damages, including, without limitation, loss or inaccuracy of data, loss of business or loss of profits arising out of the use or inability to use Kalix, even if we or the AMA has been advised of the possibility of such damages, and in no event shall we or the AMA be responsible for any claims of third parties.
    • 19.8 You agree to defend, indemnify and hold us, the AMA and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with:
      • a) the use of Kalix;
      • b) your use of the CPT content in violation of the terms of this agreement;
      • c) your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; or
      • d) your violation of any law, rule or regulation of the United States.
    • 19.9 This product includes CPT which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois, 60654. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.2277015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
  • 20. What law governs this agreement and what courts have jurisdiction?

    • 20.1 The laws of Victoria, Australia governs this agreement.
    • 20.2 The parties submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia (including Federal Courts located in Victoria) and their appeal courts.
  • 21. Important general provisions

    • 21.1 No rule of construction (including contra proferentem) shall apply to our disadvantage on the basis that we prepared this agreement or any part of it and we seek to rely on this agreement or any part of it.
    • 21.2 If any provision in this agreement is considered or determined by a court of competent jurisdiction to be unenforceable, or unlawful or inconsistent with any law (whether in whole or in part) in that jurisdiction, then to the extent of the unlawful or unenforceable nature or inconsistency, that provision may be severed from without affecting the remainder of the agreement.
    • 21.3 No right under this agreement can be waived except by notice in writing signed by the party waiving it. It a party overlooks a breach of this agreement by the other party on one or more occasions, it is not taken to have agreed to any future breach.
    • 21.4 Except as stated in this agreement, we are entitled to vary this agreement by giving you 30 days’ notice (together with the varied agreement) and requesting that you stop using Kalix if you do not agree to the varied agreement. You will be deemed to have accepted this agreement (as varied) at the expiry of that 30 day period.
    • 21.5 You cannot transfer, assign, novate or sublicense any or all of its rights, duties or obligations in this agreement to, or share them with, a third party, without our prior approval.
    • 21.6 We may transfer, assign, novate or sublicense this agreement without your consent at any time.
    • 21.7 If any term or condition of this agreement is inconsistent with the law, then the inconsistent term or condition will be read down to the extent of the inconsistency (or severed if absolutely inconsistent) without affecting the balance of the agreement.
    • 21.8 This agreement is the sole and entire agreement between the parties with respect to its subject matter, except for any other agreement which states that it is part of this agreement.
    • 21.9 Any prior representations, negotiations, arrangements or understandings are superseded by the terms of this agreement.
  • 22. Interpreting this agreement

    • 22.1 In this agreement:
      • a) defined terms are set out in clause 23, unless the contrary intention is clearly express;
      • b) a reference to using or accessing Kalix means only using or accessing its software functionality through SaaS via the web interface or through a mobile application that we approve in writing;
      • c) the term includes (or any similar term) means "includes without limitation";
      • d) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
      • e) law includes any statute, legislation, law, regulation, by-law, scheme, determination, guidance, ruling, ordinance, rule or other statutory provision (whether Commonwealth, State or municipal);
      • f) a reference to us, we or our is a reference to FC Software Solutions Pty Ltd (ABN 53 164 916 894);
      • g) a reference to you or your is a reference to the end user of Kalix and any Organisation on behalf of which you are representing or acting.
    • 22.2 From time to time we may customise, modify, enhance, adapt, update or replace Kalix in our absolute discretion, and a reference to Kalix includes such customization, modification, enhancement, adaptation, update or replacement.
  • 26. Dictionary

    Phrase Meaning
    account an access account provided by us that allows you to access the SaaS server lawfully to receive the service
    Claim any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim)
    Contract Loss loss or damage suffered by you and arising in connection with or out of these terms or any supply made under them (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which we were or should have been aware), including but not limited to economic loss, business interruption, loss of revenue, profits, actual or potential business opportunities or contracts, anticipated savings, loss of profits, loss of data, indirect or consequential loss, an obligation to indemnify another person or an obligation to contribute to the compensation of loss or damage suffered by another person.
    SaaS Server the computers that hosts the software provided for use under this agreement by us
    software functionality the functionality of the software provided by us for your use.
    mobile application an application which runs on a mobile operating system such as iOS, Android, Windows Mobile on devices such as smart phone or tablet.