Cilantro End User Licence Agreement

1. Agreement

1.1 This document sets out the terms and conditions upon which Taco Technologies (ABN 75 629 286 700) (Taco) agrees to licence the software product known as ‘Cilantro’ (Software) by to its customers (you or your). These terms and conditions take effect, and you are be deemed to have accepted them when you:

1. enter into a binding Purchase Order for the Software; or
2. install or use of the Software for the first time,

whichever is the first to occur.

1.2 This Agreement is comprised of:

1. the terms and conditions set out in this document; and
2. a binding Purchase Order for the Software,

if there is any inconsistency or conflict between the terms and conditions set out in this document and the applicable Purchase Order, the terms and conditions set out in this document shall prevail to the extent necessary to resolve the inconsistency or conflict. Any terms and conditions which you include in a Purchase Order or other document, will be null and void unless Taco has expressly agreed to accept those terms and conditions

2. Licence

2.1  Subject to your compliance with the terms of this Agreement, Taco grants you a non-exclusive, non-transferable and non-sublicensable (except as permitted in clause 2.2) licence for the Licence Term to install, use and reproduce the Software and Documentation for your internal business purposes. A 'reproduction' of the Software and Documentation includes making a reasonable number of copies for the purposes of backup, business continuity or disaster recovery.

2.2  Your rights in the Software are limited to those expressly granted under this Agreement.  Taco reserves all rights and licences in and to the Software not expressly granted to you under this Agreement.

2.3 You may sub-licence the Software and Documentation, on the terms set out in this Agreement, to (Sub-Licensees):

1. your Affiliates, if any, named in the applicable Purchase Order (Named Affiliates);
2. third party contractors engaged by you or your Named Affiliates to manage and support your or your Named Affiliates’ applications (Service Provider); and
3. third party cloud service provider engaged by you or your Named Affiliates to host the Software for your and your Named Affiliates use (Cloud Provider),

provided that such sub-licence shall termination up a Named Affiliate ceasing to be your Affiliate or a Service Provider or Cloud Provider ceasing to provide services to manage and support or host your or your Named affiliates’ applications. Your Sub-Licensees are not permitted to sublicence the Software or Documentation.

2.4 The terms of this Agreement apply to all New Releases of the Software which may be supplied by Taco from time to time.

2.5 You are solely responsible for your and your Sub-Licensees use and operation of the Software, including monitoring and verifying input and output data, back up of input and output data, and for maintaining the required operating environment and all associated hardware, firmware and Third Party Products at the most recent version or one prior version.

3. Taco’s Responsibilities

3.1  Taco warrants that it is the owner of the Intellectual Property Rights in the Software and the Documentation and that it is authorised to grant you a licence to the Software and Documentation on the terms set out in this Agreement.

3.2 Taco will: 

1. ensure the Software performs in all material respects accordance with its Documentation;
2. provide New Releases for the Software from time to time; and
3. meet or exceed service levels

3.3  Taco reserves the right to make substitutions, modifications and improvements to the Software at any time. 

4. Your licence obligations  

4.1 You must not and must not permit any other person to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, modify, sub-license, rent, lease, loan or distribute any portion of the Software or Documentation other than as expressly authorised by this Agreement or expressly permitted by law.

4.2 You must not use the Software for any illegal, unauthorised or dangerous purpose or permit any act which infringes the intellectual property rights which subsist in the Software.

4.3 Except as provided in clause 2, you shall ensure that the Software and Documentation are not modified or made available to any third party through any means including but not limited to uploading the Software or Documentation to a network or file-sharing service or through any cloud service. You shall not commercialise the Software or use the Software to operate a bureau service or process the business of any party other than the Named Affiliates.

4.4 You will effect and maintain adequate security measures to safeguard the Software and the Documentation from access or use by an unauthorised person.

4.5 You will ensure that each Sub-Licensee complies with the licensing terms set out in clause 2 and any breach of the licence terms by a Sub-Licensee will be deemed a breach by you under this Agreement. 

4.6 You must keep records relating to your and your Sub-licensees use of the Software and Documentation. At Taco’s discretion and expense, Taco may verify your compliance with the terms of this Agreement. You must provide Taco access to systems on which the Software is installed and any information or documentation that Taco reasonably requests in order to verify your compliance with this Agreement. Taco will comply with your reasonable security requirements in relation to access to any systems on which the Software is installed.

5. Third Party Products

5.1 The Software utilises API integration to connect two or more Third Party Products. Taco relies on APIs provided by the vendors of those Third Party Products in order to achieve connection. Taco will take reasonable steps to update the Software for compatibility with the APIs of Third Party Products. However, you acknowledge and agree that Taco does not have control over the functionality, performance and availability of APIs supplied by the vendors of those Third Party Products and accordingly Taco cannot guarantee connectivity between Third Party Products. You further acknowledge and agree that Taco is not responsible for the functionality, availability and operation of Third Party Products or the compatibility or interoperability of those products with each other and with the Software. Taco does not assume and shall not have any liability or responsibility to you, your Sub-Licensees or any other person or entity in respect of any Third Party Products and the connectivity of such products.  

6. Supply of Products and Services

6.1 You agree to report to Taco any defects or security vulnerabilities discovered in the Software. Taco will take reasonable steps to remedy any defects and security vulnerabilities in the Software but does not guarantee that all defects and security vulnerabilities will be remedied.

6.2 If Taco advises you that a New Release resolves or partially resolves:

1. a defect in the Software, you agree to install that New Release within 10 days of Taco's notification; or
2. a security vulnerability in the Software, you agree to install that New Release as soon as reasonably practicable but no later than 24 hours after Taco's notification.

7. Service Levels

​To be inserted if required

8. Limited Warranty and Remedies

8.1 Taco warrants that the Software will:

1. perform in all material respects in accordance with its Documentation;
2. be provided with reasonable skill and care; and
3. comply with all laws applicable to Taco’s business.

8.2 Except for warranties set out in this Agreement, Taco makes no other warranty in connection with the Software and all other warranties, representations or conditions, express or implied are excluded by Taco, to the maximum extent permitted by law. Without limiting the foregoing, you acknowledge that Taco does not warrant that:

1. the Software is error free or that its operation or performance will be error free;
2. use of the Software shall be uninterrupted;  or
3. the Software shall be fit for any particular purpose other than its conformance with the Documentation.

If any condition or warranty is implied into this Agreement which cannot be excluded by agreement, the liability of Taco for breach of that warranty shall be limited, at the option of Taco, to the re-supply or repair of the Software or the payment of the cost of having the Software repaired or supplied again.

9. Infringement indemnity

9.1 Taco will defend and/or settle any claims brought against you by an unaffiliated third party, that use of the Software by you, in accordance with this Agreement, infringes that third party's Intellectual Property Rights, provided that you: (i) give notice to Taco of the claim as soon as reasonably practicable; (ii) co-operates with Taco and comply with all reasonable directions relating to the defence of the claim, including allowing Taco to control at its cost, the defence of a claim; and (iii) you do not make any admission, compromise, or settlement of a claim without the prior written approval of Taco, such approval not to be unreasonably withheld. 

9.2 Taco shall not indemnify you under this clause to the extent that the claim of infringement results from: (i) use of the Software other than in accordance with the terms of this Agreement; (ii) your modification of the Software; or (iii) the combination, operation, or use of the Software with any product, data, apparatus, or business method that Taco did not provide or authorise, or the distribution, operation or use of the Software for the benefit of a third party (excluding your Sub-Licensees). 

9.3 If such a claim is made or appears likely to be made, you agree to permit Taco to enable you to continue to use the Software by modifying or replacing the infringing components with components that are materially equivalent.  If Taco determines that none of these alternatives is reasonably available, Taco's obligation to provide the Software and your obligation to pay for the Software will be terminated and Taco will provide a commercially reasonable refund to the you.  The remedies specified in this clause 9 are the extent of Taco's liability in the case of an unaffiliated third party infringement claim against you. 

10. Performance Limitations

10.1 Taco is excused from any failure to perform its obligations under this Agreement and will not be liable for any claim, including any warranty claim, in respect of the Software or Documentation to the extent that such failure to perform or liability arises as a result of:

1. your or your Sub-Licensees failure to comply with your obligations under this Agreement;
2. the Software being used improperly or modified, maintained or repaired by anyone other than Taco or Taco’s authorised service providers;
3. any part of your or your Sub-Licensees environment which is outside of Taco’s control; 
4. failure of the Software to connect Third Party Products as a result of a modification to or defect in such products;
5. malware (e.g. virus, worm etc.) not introduced by Taco or any person under Taco’s control;
6. failure, unavailability or security vulnerability of a third party cloud service, not caused by Taco or any person under Taco’s control; 
7. telecommunications failure or failure of the internet, not caused by Taco or any person under Taco’s control; or
8. your failure to install a New Release in accordance with clause 6.2.

11. Exclusions and limitation of liability

11.1 The Software is provided to you by Taco with the warranties and terms and conditions set out in this Agreement.

11.2 Any recommendation given by Taco in relation to the Software and the Software’s ability to connect Third Party Products is based on information available to Taco at the time the recommendation is given. You are responsible for determining the suitability of the Software to meet your and your Sub-Licensees requirements and subject to any obligations Taco owes to you under the Australian Consumer Law, Taco does not accept any liability or responsibility for any loss suffered as a result of your reliance on Taco’s recommendations. 

11.3 To the maximum extent permitted by law and except as expressly provided in this Agreement, Taco makes no representation or warranty, express or implied by statute, common law, trade usage or otherwise including without limitation, warranty of fitness for a particular purpose, merchantability and non-infringement. Nothing in this clause is intended to limit your non-excludable rights under the Australian Consumer Law.

11.4 In no event shall either party be liable for any incidental, special or consequential damages or any lost profits, savings, revenue or goodwill, loss of data, inconvenience or loss of use arising under or in connection with this Agreement and whether arising in contract, tort (including negligence), statute, equity or otherwise.

11.5 The aggregate liability of a party in respect of this Agreement, whether arising in contract, tort (including negligence), statute, equity or otherwise is limited, in aggregate, to the total amounts paid and payable by you under the applicable Purchase Order in the 12 months immediately preceding the even giving rise to liability (Aggregate Cap), except in relation to:

a. liability for fraud or wilful misconduct of a party;

b. liability for death, personal injury or tangible property damage caused by the negligence of a party; 

c. breach by you or your Sub-Licensees of your obligations in clause 4;

d. your indemnity obligations in clause 12; and

e. your liability to pay any amounts due to Taco under this Agreement; and

f. Taco’s indemnity obligations in clause 9.

11.6 The liability of each party arising under or in connection with this Agreement and any Purchase Order shall be reduced proportionately to the extent that the other party's acts or omissions cause or contribute to the loss or damage for which the first party is liable

12.  Australian Consumer Law

12. 1 If the Software or any associated Service which you acquire from Taco constitutes a consumer good or service for the purposes of the Australian Consumer Law, then: 

1. the consumer guarantees apply to those goods and services and nothing in this Agreement is intended to exclude or modify your rights in respect of those guarantees; 
2. subject to clause 11.2, if Taco breaches the consumer guarantees under the Australian Consumer Law you are entitled to the following remedies:
1. for major failure of the Software, at your election, Taco will refund or replace the Software; 
2. for major failure of a Service, at your election, you may cancel the Service and Taco will refund any monies paid for the unused portion of the Service, or you may continue with the service, and Taco will compensate you for its reduced value; and
3. if failure of the Software or a service does not amount to a major failure, at its election, Taco will repair or replace the Software or resupply the Service within a reasonable time. If this is not done you are entitled to a refund for the Software and to cancel the Service and Taco will refund any unused portion of the Service; and
4. you are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Software or Services; and 
3. during the process of repair of Software, some or all of your stored data may be lost. You must ensure that data has been saved elsewhere prior to repair. Software presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods. (This is a mandatory notice under the Australian Consumer Law).

12.2 To the extent that Software or Services are consumer goods under the Australian Consumer Law but are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Taco’s liability for breach of the consumer guarantees (other than those in Sections 51, 52 and 53 of the Australian Consumer Law) is limited: 

1. in the case of Software, to any one of the following as determined by Taco: 
1. the replacement of the Software or the supply of equivalent goods;
2. the repair of the Software;
3. the payment of the cost of replacing the Software or of acquiring equivalent goods; or
4. the payment of the cost of having the Software repaired; and
2. in the case of Services, to any one of the following as determined by Taco:
1. the supplying of the Services again; or
2. the payment of the cost of having the Services supplied again.

13. Indemnity

13.1 You indemnify and hold Taco harmless in respect of any loss or damage Taco suffers, or any claim, demand or action commenced by any person against Taco or, for which Taco is liable, together with any costs and expenses (including legal costs of a full indemnity basis), arising from or in connection with: 

1. any breach or misappropriation of Intellectual Property Rights by you or your Sub-Licensees; 
2. your or your Sub-Licensees use of the Software other than in accordance with this Agreement; or
3. any breach of the terms and conditions of this Agreement by you or your Sub-Licensees.
4. You agree that Taco does not have a contractual relationship with your Sub-Licensees and you indemnify and hold Taco harmless against all liabilities, taxes, costs (including legal fees on a full indemnity basis) and expenses, which Taco may incur as a result of any claim brought by your Sub-Licensees against Taco in respect of the Software or Documentation.

13. 2 You agree that Taco does not have a contractual relationship with your Sub-Licensees. You indemnify and hold Taco harmless in respect of any loss or damage Taco suffers together with any costs and expenses (including legal costs of a full indemnity basis) which Taco incurs in connection with any claim, demand or action commenced or made against Taco by your Sub-Licensees in respect of the Software or Documentation.

14. Terms and Termination

14.1 The term of this Agreement shall commence on the earlier of the date specified in the applicable Purchase Order or the date on which you first use the Software or Documentation and will continue in accordance with this clause 13.

14.2 If the applicable Purchase Order specifies a Minimum Term, then this Agreement will continue for the Minimum Term unless terminated earlier in accordance with this clause 13.

14.3 You may terminate this Agreement at any time by providing Taco with [30 days] prior written notice, provided that where a Minimum Term applies, such termination shall not take effect until expiry of the Minimum Term and you shall be liable to pay all Fees up to expiry of the Minimum Term, whether or not you choose to use the Software and Documentation up to the expiry date.

14.4 Either party may terminate this Agreement immediately by notice in writing if the other party is in breach of its obligations (including payment obligations) under this Agreement and such a breach is not remedied within fourteen (14) days of being notified of the breach by that Party. 

14.5 Either Party may immediately terminate this Agreement by providing the other Party written notice, if that other Party:

1. becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration or bankruptcy; or
2. ceases or threatens to cease conducting its business in a normal manner.

14.6 Where you have failed to remedy a breach in accordance with clause 13.4, Taco may do any or all of the following:

1. suspend your and/or your Sub-Licensees’ licence keys;
2. terminate or alter your and/or your Sub-Licensees licence rights under clause 2;
3. suspend or terminate provision of associated Services; and

14.7 Upon termination of this Agreement or expiry of the Licence Term, the licence keys for the Software will be deactivated and you will uninstall and delete all copies of the Software.

14.8 In the event that Taco has the right to terminate this Agreement in accordance with clause 13.4 or 13.5 all invoices will become immediately due and payable.    

14.9 All other provisions that, by their nature, are intended to survive termination of this Agreement, will survive termination and expiry of this Agreement.

15. Fees and Payment

15.1 In consideration for Taco’s supply to you of the Software and Documentation you will pay to Taco the License Fee as set out in the applicable Purchase Order.

15.2 Taco will invoice you in the manner specified in the Purchase Order and if not specified, Taco may invoice you in advance, in instalments or in arrears, as Taco chooses. 

15.3 Unless otherwise specified in a Purchase Order, all License Fees are expressed as a GST exclusive amount. Where a party makes a taxable supply (supplier) to another party (recipient), the recipient must pay to the supplier an additional amount equal to the GST, payable at the same time as the payment for the supply, subject to the recipient receiving a tax invoice. Terms used in this paragraph have the meanings given to them in the A New Tax System (Products and Services Tax) Act 1999 and any other applicable legislation governing GST.

15.4 You may not deduct from amounts due to Taco any amount payable by you on account of withholding tax. 

15.5 Unless otherwise specified in the applicable Purchase Order, you must pay Taco’s invoices within thirty (30) days of the invoice date.

15.6 If any invoice is due but unpaid, Taco may (a) suspend your and/or your Sub-Licensees’ licence keys and/or withhold the provision of any further Services until overdue amounts are paid in full.

15.7 Taco may apply any payment received from you to any amount owing by you to Taco under any Purchase Order or other agreement.

15.8 If you believe Taco is in breach of this Agreement or has supplied you with defective Software or Services, you are entitled to notify Taco in accordance with the dispute resolution provision in clause 18. You are not entitled to withhold any money owing to Taco in such circumstances. Nothing in this paragraph affects your rights under the Australian Consumer Law guarantees.

15.9 Taco may charge you interest at the rate of 5% per year on all overdue amounts owed by you to Taco, calculated and compounded daily.

15.10 All costs and expenses incurred by Taco in collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses, are a debt due and payable by you on demand by Taco.     

16. Privacy

16.1 When you or your Sub-Licensees acquire the Software from Taco or use the Software, you and your Sub-Licensees may be providing Personal Information (including Personal Information of your end users) to Taco. In doing so, you consent to the collection, use, storage and disclosure of that information by Taco in accordance with these terms and Taco’s Privacy Policy a copy of which is available at https://www.taco-tech.com/privacy-policy. You warrant to Taco that you have obtained all necessary consents from your Sub-Licensees and end users of the Software in respect of the collection of Personal Information by Taco on the foregoing terms.

16.2 Each party will comply with all privacy laws applicable to the jurisdiction in which the Software and Services are provided. Taco’s Privacy Policy outlines how Taco comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

16.3 You must not, and must ensure that your Sub-Licensees do not, use the Software unless you consent to the handling of Personal Information in accordance with Taco’s Privacy Policy.

17. Confidentiality 

17.1 Each party will keep confidential all Confidential Information obtained from the other party and will take all reasonable precautions to prevent any unauthorised disclosure of the Confidential Information.

17.2 Except as permitted by this clause, neither party will use the other party’s Confidential Information to gain an advantage for itself or a third party or disclose it to a third party without the written consent of the other party. 

17.3 The parties may disclose Confidential Information only to those officers, employees, agents and sub-contractors to whom, and to the extent to which, such disclosure is necessary for the performance of their respective obligations to each other, and must ensure that such officers, employees, agents and sub-contractors are made aware of and observe the terms of the confidentiality obligations set out in this clause.

17.4 Upon the earlier of a written request from a party, or the expiration or termination of any agreement between them governed by these terms, the other party will return or destroy, at the first party's option, any and all of that party's Confidential Information.

17.5 Each party will give notice to the other of any unauthorised disclosure, misuse, theft or other loss of a party's Confidential Information, whether inadvertent or otherwise, immediately upon becoming aware of the same.

17.6 The Software and Documentation are the Confidential Information of Taco. You will ensure that your Sub-Licensees comply with the obligations under this clause 16 in respect of Taco’s Confidential Information.

17.7 The obligations of the parties under this clause will survive termination of this Agreement.

18. Force Majeure

18.1 Except for payment obligations, neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control and without fault, including but not limited to, fire, flood, earthquake, elements of nature, acts of God, riot, civil disorder, rebellion, revolution, industrial disputes, health epidemics or change in government regulation (Force Majeure Event). 

18.2 A party seeking to rely on a Force Majeure Event must provide written notice of the event to the other party, including the impact of the event on performance of its obligations, the steps it is taking to mitigate those effects and the expected duration of the event. If a Force Majeure Event is ongoing for more than 60 days, either party may terminate the affected Purchase Order without penalty, except that you shall be liable for all accrued payment obligations.

19. Dispute Resolution

19.1 Neither party shall commence any court or arbitration proceedings to resolve a dispute under this Agreement (Dispute) unless the parties have complied with this clause. A party claiming a Dispute has arisen must give written notice (Notice) to the other party specifying the nature of the Dispute. Within 14 days of receipt of the Notice (or such further period as agreed in writing by them) senior management of each party shall meet to discuss the Dispute and seek resolution. If a resolution is not reached within 14 days of such meeting, the parties shall, within 45 days of receipt of the Notice (or such further period agreed in writing by them), mediate the Dispute in accordance with mediation administered by the Australian Disputes Centre. Nothing in this clause shall prevent a party from seeking urgent interlocutory or equitable relief before an appropriate court. 

19.2 The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the Dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the Dispute. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the Dispute.

20. General

20.1 This Agreement and the applicable Purchase Order constitute the entire agreement between the parties with respect to the Software and Documentation supplied by Taco and supersedes all prior representations, agreements, statements (including any additional terms which you insert on a Purchase Order) and understandings, whether verbal or in writing. 

20.2 Taco may subcontract any of its obligations under this Agreement, provided that subcontracting will not relieve Taco of its responsibility for the performance of its obligations under this Agreement. You may not assign any of your rights and obligations under this Agreement without the prior written consent of Taco. 

20.3 No rights under this Agreement will be deemed to be waived except with written notice signed by the party waiving the applicable right and the waiver shall only apply to the rights expressly set out in that notice. Any failure by a party to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by a party will not be construed as a waiver of that party’s rights under this Agreement. A waiver by a party will not prejudice its rights in respect of any subsequent breach of these this Agreement by the other party.

20.4 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

20.5 The provisions of this Agreement will not be varied, except by agreement in writing signed by both the parties.

20.6 The provisions of this Agreement which are capable of having effect after the expiration or termination of this Agreement will remain in full force and effect following such expiration or termination.

20.7 This Agreement will be governed by and construed according to the law of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the New South Wales Courts.

20.8 The parties agree that the United Nations Convention on Contracts for the International Sale of Products will not apply to this Agreement.

20.9 Notices under this Agreement may be delivered by hand, by mail, or by electronic mail to the addresses specified for each party in the applicable Purchase Order (or as notified by each party to the other party in writing from time to time). If a notice is sent by hand or mail, a copy must be sent to the recipient’s email address. Notice will be deemed given:

1. in the case of hand delivery, on written acknowledgment of receipt by the receiving party or an officer or other duly authorised employee, agent or representative of the receiving party;
2. in the case of posting by mail, three (3) Business Days after dispatch;
3. in the case of electronic communication, it is to be treated as given when sent to the recipient's email address, provided that the sender does not receive a delivery failure message.

21. Definitions

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