If you are entering into this Agreement on behalf of an entity or organisation, you represent and warrant that you have the full authority, as at the time of entering into this Agreement, to bind that entity or organisation to this Agreement. You will provide evidence of such authority on request by Glencore.
(b) Glencore may, in its sole discretion, update, modify or replace any or all of these Terms from time to time by posting an updated version on the Glencore Portal. Vendor is responsible for checking the Glencore Portal for changes to these Terms, however, Glencore will use its best endeavours to bring any material change in these Terms to Vendor's attention. Vendor's continued use of, or access to, the Glencore Portal following the posting of any changes to these Terms constitutes acceptance of those changes. If Vendor does not agree to any update to these Terms Vendor must immediately cease using and accessing the Glencore Portal.
(c) Vendor may access and use the Glencore Portal (including the Glencore Portal Content) only as permitted by these Terms.
(a) Glencore grants to Vendor a non-exclusive, limited, non-sublicensable, non-transferable, revocable licence to access the Glencore Portal during the Term in accordance with this Agreement.
(b) Glencore will assist with queries regarding how to use the Glencore Portal including providing Vendors with documentation of how to use the Glencore Portal.
(c) Glencore may engage a third party service provider to assist in the delivery, installation, customisation or support of the Glencore Portal, as applicable.
3 Term and termination
(a) These Terms commence when Vendor agrees to them by clicking 'I agree' and will continue in full force and effect until terminated in accordance with the remainder of this clause 3 (Term).
(b) You can terminate these Terms at any time by providing us 30 days prior written notice of your intention to terminate to the following email address: firstname.lastname@example.org
(c) Glencore may terminate these Terms at any time by providing 30 days prior written notice of our intention to terminate to the email address provided to Glencore by Vendor, or by any other suitable means which ensures that Vendor will be able to take notice of the cancellation.
(i) Vendor breaches any term of these Terms; or
(ii) Vendor has clearly demonstrated (regardless of whether directly or through your actions or statements or otherwise) that you do not intend to comply with these Terms,
Glencore may immediately (without notice to Vendor):
(iii) terminate these Terms or suspend Vendor's access to the Glencore Portal; and
(iv) prevent Vendor further access to the Glencore Portal.
(e) Glencore may terminate these Terms upon reasonable notice if practicable, if:
(i) Glencore is required by any applicable Law to terminate access to all or any part of the Glencore Portal or Glencore Portal Content; or
(ii) Glencore is of the opinion that the provision of any such services or Glencore Portal Content or parts thereof are no longer commercially feasible.
(f) Upon termination, Vendor shall cease all use of the Glencore Portal and Glencore Portal Content, and Glencore reserves the right to delete Vendor's account and all data provided by or about Vendor.
4 Use of the Glencore Portal
(a) Vendor must not, without Glencore's prior written approval:
(i) copy or replicate, or directly or indirectly allow or cause a third party to copy or replicate, the whole or any part of the Glencore Portal or any Glencore Portal Content;
(ii) vary, alter, modify, interfere with, reverse disassemble, decompile, or reverse engineer, or otherwise seek to obtain or derive the source code from any part of the Glencore Portal (or directly cause or permit any other person to do so); or
(iii) publicly disseminate information regarding the use of or information available on the Glencore Portal.
(b) Vendor is responsible for maintaining control over and access to its account for the Glencore Portal. Vendor must keep accurate, up-to-date records of each of Vendor's Personnel who access Vendor's account for the Glencore Portal.
(c) Vendor must maintain the confidentiality of all login information and must not allow or authorise any person other than Vendor's Personnel to use the login information. Vendor must immediately notify Glencore of any suspected or actual unauthorised access to or use of the login information.
(d) Vendor is responsible for all activities that occur on Vendor's instance of, or account for, the Glencore Portal, whether or not authorised by Vendor.
(e) Vendor must not, and must ensure its Personnel do not, use the Glencore Portal (including through the upload of any Vendor Material) in any way that:
(i) involves anything which is false, defamatory, harassing or obscene;
(ii) would involve the contravention of any person's rights (including Intellectual Property Rights);
(iii) may contravene any Laws;
(iv) could damage, disable or impair any part of the Glencore Portal;
(v) may otherwise be regarded by Glencore, on reasonable grounds, to be unacceptable (Glencore may from time to time notify Vendor of the circumstances which it regards as unacceptable);
(vi) involves any fraudulent activity; or
(vii) involves the sale or promotion of any illegal business activities or prohibited products or services.
5 Security of the Glencore Portal
(a) Glencore will use its reasonable endeavours to implement industry standard safeguards with respect to the Glencore Portal, however security is a joint responsibility and Vendor is solely responsible for maintaining the security of its information and communications technology (ICT) environment and any access credentials associated with the account and is fully responsible for all activities that occur under its account (whether or not authorised by Vendor).
(b) Glencore and its Related Bodies Corporate, contractors, suppliers and licensors (excluding the Vendor) will not be liable for any acts, inactions or omissions by or on behalf of Vendor, including any damages of any kind arising from such acts or omissions.
(a) From time to time, Glencore may introduce Updates to the Glencore Portal.
(b) Glencore will provide Vendor with reasonable prior notice in advance of any Update which would have a material detrimental impact on the Glencore Portal, unless security, legal, system performance or Third Party Licence considerations or obligations require an expedited Update.
7 Intellectual Property Rights
(a) Vendor acknowledges and agrees that Glencore owns or licenses all Intellectual Property Rights in the Glencore Portal and Glencore Portal Content and nothing in this Agreement is intended to transfer ownership of or interest in any Intellectual Property Rights of Glencore or any third party.
(b) Vendor must notify Glencore immediately if it becomes aware of any:
(i) other breach of any of Glencore's Intellectual Property Rights; or
(ii) any claim by any third party relating to Intellectual Property Rights in the Glencore Portal or Glencore Portal Content.
7.2 Vendor Material
(a) Vendor agrees and acknowledges that it is solely responsible for any Vendor Material.
(b) Vendor must ensure that Vendor Material, and its collection, use, processing, disclosure and dissemination via the Glencore Portal:
(i) will not infringe any Intellectual Property Rights of any person; and
(ii) complies with all applicable Laws (including Privacy Laws, where applicable).
(c) Notwithstanding any other clause in this Agreement, Vendor agrees that Glencore will have the right to access, use, adapt, modify, reproduce, reformat, transform, and process Vendor Material for the purpose of:
(i) providing Vendor with the Glencore Portal;
(ii) internal training; and
(iii) testing, improving and developing new features for the Glencore Portal,
and grants Glencore a perpetual, royalty-free, worldwide, transferable, non-exclusive licence to do so.
8 Confidentiality and publicity
(a) Subject to clauses 8.1(b) and 8.1(c) , each party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement or any other Confidential Information of the other party.
(b) A party may only disclose Confidential Information of the other party:
(i) to persons which control, or are controlled by, the party within the meaning of the Corporations Act, and the employees, legal advisors or consultants of such persons, in each case under corresponding obligations of confidence as imposed by this clause and only where such persons, employees, legal advisors or consultants of such persons have a need to know such information in connection with this Agreement;
(ii) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
(iii) to the extent required by Law or pursuant to a binding order of a government agency or court.
(c) Glencore may disclose Confidential Information of Vendor to the extent necessary in connection with a capital raising, financing, or transfer or divestiture of all or a portion of its business, or otherwise in connection with a merger, consolidation, change in control, reorganisation or liquidation of all or part of Glencore's business, but will use reasonable efforts to minimise the scope of such disclosure.
9 Privacy and security
(a) Each party must comply with the Privacy Act (as though it were an entity bound by the Privacy Act and notwithstanding the small business exception in the Privacy Act) and any other applicable Privacy Laws, in respect of any Personal Information that:
(i) one party discloses to the other party; or
(ii) comes into the possession or control of that party by any means, including through use of the Glencore Portal.
(b) Vendor must, throughout the Term, obtain all necessary Consents, and provide all necessary notices, relevant to its use of the Glencore Portal, including those required by the Privacy Laws in relation to the collection, use, disclosure and storage of Personal Information of any individual whose Personal Information may be provided to Glencore, directly or indirectly, as contemplated by this Agreement.
(c) Vendor acknowledges and agrees that Glencore may provide all or part(s) of the Glencore Portal from any location worldwide.
10 Data breaches
10.1 Data and Security Incidents
If the Vendor becomes aware of or suspects any loss of, or unauthorised access to, use or disclosure of, or breach of any security in relation to any Vendor Material or any data received or obtained from the Glencore Portal or Glencore in accordance with this Agreement, or any data relevant to the services provided by the Vendor to Glencore (Data Security Incident), the Vendor must:
(a) immediately notify Glencore in writing and provide Glencore with all details of the act or breach;
(b) co-operate and comply with all reasonable directions of Glencore in relation to such event; and
(c) promptly take all reasonable steps to rectify or remedy such breach where possible.
10.2 Notification to regulator
(a) If a Data Security Incident occurs and the Vendor wishes to notify the relevant regulator and/or affected individuals, the Vendor must work with Glencore in good faith to prepare such a notification (which, if prepared in relation to a Notifiable Data Breach, must comply with the Privacy Act).
(b) Any correspondence or notification sent by Vendor to the relevant regulator (and affected individuals, if applicable) must be in a form approved by Glencore in advance.
11 Third Party Content
(a) Vendor acknowledges that the Glencore Portal may incorporate Third Party Content including open source software and that Glencore is not responsible for the accuracy, quality, integrity or reliability of the same.
(b) To the extent permitted by Law (including the Australian Consumer Law, if applicable), Glencore does not give any representation or warranty as to the reliability, accuracy or completeness of any Third Party Content, including open source software, and Glencore will have no responsibility or liability to Vendor or any other person arising from or in connection with any error, defect or inaccuracy in any Third Party Content.
12 Force Majeure
(a) Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed (in whole or in part) due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.
(b) The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
Each party warrants that it:
(a) has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
(b) will comply at all times with applicable Laws; and
(c) will not do anything or make any statement that could be reasonably expected to harm the reputation of the other party, and, in the case of Vendor, the Glencore Portal.
(a) Vendor acknowledges and agrees that, to the extent permitted by Law (including the Australian Consumer Law if applicable), the Glencore Portal is made available "as is" and Glencore makes no representation, warranty or guarantee:
(i) that the Glencore Portal will meet Vendor's requirements or expectations;
(ii) that the Glencore Portal or the Glencore Portal Content or any information extracted from them, will be accurate, free from defects, bugs, errors or omissions, or that any Vendor Material input into the Glencore Portal will not be lost or corrupted; or
(iii) in relation to non-infringement, title, fitness for a particular purpose, functionality, availability or merchantability.
(b) Glencore uses reasonable endeavours to ensure that the Glencore Portal is free of viruses or other harmful components, but cannot guarantee it will be free from unknown viruses and other harmful components.
(c) Glencore shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other platforms outside the reasonable control of Glencore.
(d) Glencore disclaims all liability in respect of any loss suffered by Vendor as a result of a nefarious third party attack on the Vendor's System including where the third party attack leads to the redirection of fees rendered and due and payable to Vendor by Glencore.
Without limiting any other indemnities given by Vendor under this Agreement, Vendor shall defend, hold harmless and indemnify Glencore and its Related Bodies Corporate and Personnel (the Glencore Indemnified Parties) from and against any Loss suffered or incurred by the Glencore Indemnified Parties arising out of or in connection with:
(a) any breach by Vendor of clauses 4 (Use of the Glencore Portal), 8 (Confidentiality and publicity), 9 (Privacy and security) and 10 (Data breaches);
(b) any Vendor Material (including Personal Information) used or disclosed by Vendor, including any claim by any person that Vendor Material infringes any Intellectual Property Right or other right (including privacy rights) of such person or any third party;
(c) the use of the Glencore Portal or Glencore Portal Content by Vendor and its Personnel;
(d) any fraud, wilful misconduct or negligence by Vendor or its Personnel.
16 Limitation of Liability
(a) To the extent permitted by Law, (including the Australian Consumer Law if applicable)
(i) and subject to clause 16 (b) , in no event will the aggregate liability of Glencore for any Loss, direct or otherwise, exceed an amount equivalent to $100, regardless of the cause or form of action;
(ii) Glencore's liability to Vendor in respect of a breach of any applicable consumer guarantee under the Australian Consumer Law, is limited to the resupply of the services or the cost of resupplying the services; and
(iii) under no circumstances will either party be liable for any Consequential Loss, except to the extent arising from a breach by Vendor of its obligations under clauses 7 (Intellectual Property Rights), 8 (Confidentiality and publicity), 9 (Privacy and security) and 10 (Data breaches).
(b) Clause 16 (a) does not apply to, and shall not limit, any party's liability:
(i) for death or personal injury caused by that party or its Personnel; or
(ii) for fraud (including fraudulent misrepresentation).
Vendor must not assign or novate, directly or indirectly, any of its rights or obligations under this Agreement without the prior written consent of Glencore (such consent not to be unreasonably withheld or delayed).
Without limiting any other provision of this Agreement clauses 7 (Intellectual Property Rights), 8 (Confidentiality and publicity), 9 (Privacy and security), 15 (Indemnities) and any other clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.
Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:
(a) must be in writing and signed by the sender or a person duly authorised by the sender (or in the case of email, set out the full name and position or title of the sender or person duly authorised by the sender);
(b) must be addressed and delivered to the intended recipient by emailing us at email@example.com; and
(c) will be conclusively taken to be duly given or made when delivered at the above email address.
If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.
20 Dispute resolution
(a) If a dispute arises out of or in relation to this Agreement, either party may notify the other in writing in which case a nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. In the event that the parties are unable to resolve the dispute within seven (7) days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to one of the Managing Director, Chief Executive or Chief Operating Officer or equivalent senior executive (Senior Executive) of that party.
(b) If the parties are unable to resolve the dispute within fourteen (14) days following referral to the Senior Executive of the relevant parties, then either party may use such lawful dispute resolution procedures or seek such legal and equitable remedies as it considers necessary or appropriate in its sole discretion.
(c) Nothing in this clause 20 shall prevent a party from seeking urgent injunctive relief before an appropriate court.
(a) Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement.
(b) This Agreement contains the entire agreement between the parties with respect to its subject matter. Neither of the parties has relied on or is relying on any other representation in entering into this Agreement.
(c) Vendor will be fully responsible to Glencore for any Loss suffered by Glencore or its Personnel arising from or in connection with the acts or omissions of Vendor's Personnel, assigns and all their employees, as if they were the acts and omissions of Vendor.
(d) No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
(e) The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any other agreement.
(f) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
(g) Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
(h) This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.
22 Definitions and interpretation
The following definitions apply unless the context requires otherwise.
Agreement means these Terms.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time.
Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement. Specifically, Glencore's Confidential Information includes the design, specification and content of the Glencore Portal, including its source code, Glencore's personnel information, operational and other policies, project documentation, proposals, or other development documentation including any specifications, or business strategies, and the terms of this Agreement. Confidential Information does not include information which is:
(a) already known to the other party;
(b) received by the other party from a third party not under a duty of confidence; or
(c) independently developed by the other party.
Consent means any licences, clearances, permissions, authorisations, waivers, approvals or consents.
Consequential Loss means any indirect or consequential loss (not being loss which arises naturally as a result of a breach of this Agreement or other event the subject of the relevant claim), including loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business.
Corporations Act means the Corporations Act 2001 (Cth), as amended or replaced from time to time.
Force Majeure Event affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes (other than of its own staff), embargo, or power, water and other utility shortage.
Glencore Portal means the Glencore Portal available at http://sapvendor.coal.au.glencore.net/
Glencore Portal Content means any content, data or materials made available to Vendor on or via the Glencore Portal.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trade marks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which subsist or may hereafter subsist anywhere in the world, but excludes moral rights, and similar personal rights, which by law are non-assignable.
Law means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
Loss means any claim, loss, damage, liability, cost, charge or expense (including legal expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.
Notifiable Data Breach has the meaning given to that term in the Privacy Act.
Personal Information has the meaning given to that term in the Privacy Act.
Personnel means, in respect of a person, any officer, employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any subcontractors.
Privacy Act means the Privacy Act 1988 (Cth), as amended or replaced from time to time.
Privacy Laws means all legislation, principles, industry codes and policies, as amended or replaced from time to time, which relate to the collection, use, disclosure, storage or granting of access rights to Personal Information, and includes the Privacy Act and the Spam Act 2003 (Cth).
Related Body Corporate has the meaning given to that term in section 9 of the Corporations Act, but also includes any company to which Glencore provides management services.
Term means the period from when you agree to this Agreement by clicking 'I agree' when you use the Glencore Portal and related services) and until termination in accordance clause 3 .
Third Party Content means any information, data or other content that Glencore sources and/or supplies from any third party for use in connection with the Glencore Portal.
Third Party Licence means any licence, registration or other authorisation that is required by Vendor to enable Vendor to properly access and use the Glencore Portal, including any licence, registration or other authorisation as notified by Glencore to Vendor.
Update means any update, upgrade or modification to the Glencore Portal from time to time, but does not include new versions of the Glencore Portal as determined in the absolute discretion of Glencore.
Vendor Material means any and all data or other material input, entered into or added or uploaded to the Glencore Portal, or otherwise provided or made available to Glencore, by, on behalf of, or at the request of, Vendor or its Personnel.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) the singular includes the plural and conversely;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to a person includes any body corporate, unincorporated body or other entity and conversely;
(e) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(f) a reference to any agreement or document (including a reference to this Agreement) is to that agreement or document as amended, notated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
(g) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(h) a reference to conduct includes any omissions, statement or undertaking, whether or not in writing;
(i) a reference to includes, means includes without limitation; and
(j) all references to $ are to Australian dollars, unless otherwise specified.