SOFTWARE AS A SERVICE AGREEMENT
This agreement constitutes a legal agreement between you (Licensee) and Beam Australia Operations Pty Ltd ACN 615 709 067 (Company). By accessing and/or using the Platform (as defined below), you (Licensee) agree to the following terms with the Company and the Licensee and the Company are bound by the terms and conditions set out in this agreement.
The Licensee wishes to receive, and the Company agrees to supply, the Platform as a service on the terms of this agreement.
The fee will be charged as per the agreed pricing
The AUD amount exclusive of GST per month notified by the Company to the Licensee at least 30 days prior to the conclusion of the Initial Term. If the Company does not notify the Licensee of a new fee, the Continuing Licence Fee is an amount equal to the Fixed Licence Fee
If the Licensee has agreed to pay the Monthly Fee, one month
If the Licensee has agreed to pay the Annual Fee, 12 months
The Fixed Licence Fee and New Licence Fee must be paid for each Licensing Period in advance
The Continuing Licence Fee must be paid per month in advance
All other Fees are payable in advance
Payment of Fees are to be made by credit card or electronic funds transfer to the Company’s nominated bank account
If the Licensee has agreed to pay the Monthly Fee, one Licensing Period commencing on the Commencement Date, provided that the Initial Term continues on a month-by-month basis after the end of that Licensing Period (up to a maximum of a further 11 months) unless the Licensee notifies the Company that it wishes to terminate this agreement at the end of the then current month
If the Licensee has agreed to pay the Annual Fee, one Licensing Period commencing on the Commencement Date
The date on which the Licensee first registers to access and/or use the Platform
The Platform will include the following:
The Company will provide the following services as part of the Licence Fee:
Capitalised terms used in the Key Terms have the meaning adjacent to those terms, and the following definitions apply unless the context requires otherwise:
Authorised User means any of the Licensee’s personnel authorised to use the Platform in accordance with clause 11.4.
Business Day means:
(a) for the purpose of sending or receiving a notice, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in the city where the notice is received; and
(b) for all other purposes, a day which is not a Saturday, Sunday, a bank holiday or a public holiday in Sydney.
Business Hours means from 9.00am to 5.00pm on a Business Day.
Company IP has the meaning given in clause 9.1(a).
Commencement Date means the date of this agreement.
Confidential Information means all information of any kind belonging or relating to the Discloser or its business affairs, whether or not it is in tangible or documentary form, and whether or not marked or identified as being confidential, and includes the subject matter and terms of this agreement, information relating to the design, specification and content of the Platform, and information relating to the personnel, policies or business strategies of the Discloser.
Corporations Act means the Corporations Act 2001 (Cth).
De-identified User Data means User Data which has been aggregated and anonymised so that all Personal Information and information identifying the Licensee or any Authorised User has been removed.
Details means, in relation to a party, the details for that party set out in this agreement.
Discloser has the meaning given in clause 12.1.
Fees means the fees payable by the Licensee to the Company under this agreement.
Force Majeure Event means any act or circumstance beyond the reasonable control of a party (other than lack of funds), including:
(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires, pandemic, epidemic and any natural disaster; and
(b) acts of war, acts of public enemies, terrorism, hostility, invasion, riot, industrial action, civil commotion, strike, lockout, governmental regulation or direction, malicious damage, sabotage, revolution and failure in telecommunications, satellite or global positioning systems.
GST Amount means, in relation to a Payment, an amount arrived at by multiplying the Payment (or the relevant part of a Payment if only part of a Payment is the consideration for a taxable supply) by the appropriate rate of GST (being 10% when the GST Law commenced).
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and any regulation made under that Act.
Insolvency Event means, in respect of a body corporate, the occurrence of any of the following in respect of that body corporate:
(a) an order is made or an effective resolution is passed for the winding up, dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) or deregistration of that body corporate;
(b) a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed or expected to be appointed over the whole or a substantial part of the undertaking or property of that body corporate;
(c ) a holder of an encumbrance takes possession of or exercises any other rights arising from the encumbrance over the whole or any substantial part of the undertaking and property of that body corporate, or indicates an intention to do so;
(d) that body corporate becomes insolvent or any circumstance exists or arises which would require a court to presume that that body corporate is insolvent;
(e) that body corporate enters into or takes any steps to enter or proposes to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or a class of them;
(f) that body corporate stops, suspends or threatens to stop or suspend paying its debts as and when they fall due; or
(g) any analogous event under the laws of any applicable jurisdiction.
Intellectual Property Rights means all present and future rights to:
(a) trade marks, trade names, domain names, logos, patents, inventions, registered and unregistered design rights, copyrights, circuit layout rights, trade secrets and the right to have information kept confidential, and all similar rights in any party of the world (including know-how); and
(b) where the rights referred to in paragraph (a) are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such applications.
Licence has the meaning given in clause 3.1(a).
Licence Fee means the Fixed Licence Fee, Continuing Licence Fee or New Licence Fee (as applicable).
Loss means:
(a) any claim, demand, remedy, requisition, objection, suit, injury, damage, loss, liability, action, proceeding, right of action or claim for compensation;
(b) a valid request, direction, notice, demand, requirement, condition (including condition of an approval) or order from an authority that requires anything to be done or not to be done; or
(c ) any reasonable cost (including legal costs on a solicitor and client basis), charge, expense, outgoing, payment or other expenditure of any nature.
New Licence Fee has the meaning given in clause 2.2(b).
Payment means:
(a) the amount of any monetary consideration (other than a GST Amount payable under clause 1.4); or
(b) the GST exclusive market value of any non-monetary consideration, which is paid or provided by one party to another for any supply made under or in connection with this agreement and includes any amount payable by way of indemnity, reimbursement, compensation or damages.
Personal Information has the meaning given in the Privacy Laws.
Platform means the online work design platform set up by the Company for the Licensee and known as “Beamible” that enables Authorised Users to create organisation designs, team designs, enter role-based activities and their associated hours, design work within the context of a team, and generate organisation, team and role level insights through task level data analysis.
Privacy Laws means the Privacy Act 1988 (Cth), as amended from time to time.
Privacy Policy means the Company’s privacy policy available at https://app.beamible.com/register, as amended from time to time.
Recipient has the meaning given in clause 12.1.
Requested Modifications means additional developments, features or services requested by the Licensee and to be provided by the Company in accordance with clause 4.5(a).
Renewal Term has the meaning given in clause 2.2(b).
Rollover Period has the meaning given in clause 2.3.
Service Levels means, in respect of the SaaS Services, the level of service as specified in Schedule 1.
Support Request has the meaning given in clause 6.3(a).
Term means the Initial Term, the Rollover Period and the Renewal Term (if and as applicable).
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Platform and the SaaS Services, including any third party solutions, systems, data hosting provider and networks.
Upgrades means any updates made to or new releases of the Platform in accordance with clause 4.4.
User Content means content generated and published on the Platform by an Authorised User.
User Data means information about an Authorised User and the Authorised User’s activity which has been generated on or collected via the Platform, but does not include any User Content.
User Material means User Content and User Data (including any User Personal Information).
User Personal Information means the Personal Information of the Authorised Users contained in User Data.
Virus means any virus, Trojan horse, worm or other software routine designed to permit unauthorised access to any software or disable any software or data.
Webpage has the meaning given in clause 4.1.
In this agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa and a gender includes other genders;
(b) other grammatical forms of a defined word or expression have a corresponding meaning;
(c ) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of or schedule or annexure to this agreement and a reference to this agreement includes any schedule and annexure;
(d) a reference to a document or agreement, includes the document or agreement as novated, altered, supplemented or replaced from time to time;
(e) a reference to AUD, AU$ or $ is to Australian dollars;
(f) a reference to time is to Sydney time;
(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(i) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
(j) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
Headings are for ease of reference only and do not affect interpretation.
The term of this agreement begins on the Commencement Date and will continue for the Initial Term unless terminated in accordance with this agreement.
(a) The Licensee may provide the Company with a request in writing no later than 90 days before the conclusion of the Initial Term or the then current Renewal Term to extend this agreement for a further term (that must be equal to one or more Licensing Periods) (with the Licence Fee for each Licensing Period being the Fixed Licence Fee) (Renewal Request).
(b) If, prior to the expiry of the Initial Term or the then current Renewal Term, the Renewal Request is accepted by the Company in writing or the parties otherwise reach written agreement on a further term (each, a Renewal Term) and the new licence fee per Licensing Period (New Licence Fee), this agreement will continue from the conclusion of the Initial Term or the then current Renewal Term until the expiry of the new Renewal Term (subject to the Licensee paying the Fixed Licence Fee or the New Licence Fee (as applicable)), unless terminated in accordance with this agreement.
If this agreement is not renewed or terminated in accordance with this agreement, this agreement will, subject to the Licensee paying the Continuing Licence Fee each month, continue on a month-by-month basis until this agreement is terminated in accordance with this agreement (Rollover Period).
(a ) Subject to the payment of the Licence Fee by the Licensee, the Licensee is granted a limited, non-exclusive, non-transferable, and revocable licence to use the Company IP for its internal business purposes for the Term (Licence).
(b) All other rights and licences not expressly granted to the Licensee by the Company are reserved by the Company.
The Licence cannot be sub-licensed without the Company’s prior written consent.
Upon receipt of payment of the Fees for the Set-up Services and Fixed Licence Fee for the first Licensing Period, the Company will set up the Platform and make the Platform available as a webpage via a URL determined by the Company (Webpage).
Subject to payment of the Licence Fee by the Licensee, the Company will provide the SaaS Services to the Licensee for the duration of the Term.
(a) The Licensee may, from time to time, request Premium Services to be provided by the Company and such requests must be made in writing.
(b) If the Company accepts a request for Premium Services, the Company will send an invoice to the Licensee for the relevant Premium Services which must be paid prior to commencement of the relevant Premium Services.
(a) The Licensee acknowledges and agrees that the Company may upgrade or release a new version of the Platform:
(b) The Company may, from time to time, develop new features for the Platform and may, at its sole discretion, offer these new features to the Licensee for an additional fee.
(a) The Licensee may, from time to time, request modifications or enhancements to the Platform.
(b) At the request of the Licensee, the Company may agree, but is not obliged, to carry out those modifications or enhancements, provided that any such modifications or enhancements, subject to the Licensee paying the applicable Fees, will be carried out subject to a mutually agreed statement of work.
(c ) Subject to any written agreement to the contrary between the parties, the Intellectual Property Rights in or subsisting in any modification or enhancement to the Platform will remain with the Company, and the modification or enhancement will be made available to the Licensee as an addition to the Licence.
The Company shall manage the hosting of the Platform and any other associated domains belonging to the Company.
The Licensee acknowledges that:
(a) the SaaS Services provided by the Company do not include the supply and maintenance of the Licensee’s hardware, infrastructure, or software not supplied by the Company as part of the Platform or the SaaS Services; and
(b) it must use Google Chrome, Microsoft Edge, or Firefox to access the Platform (which, for the avoidance of doubt, will not be supplied by the Company to the Licensee).
The Company shall follow the security measures and processes set out below:
(a) the Platform shall be run in a cloud environment under the Company’s control;
(b) the Platform shall be segmented from other instances of the Platform and from third party access;
(c ) all access to the code base and infrastructure of the Platform will be controlled by Google Cloud Platform (GCP) Identity and Access Management (IAM) Access;
(d) all administrative access to servers hosting the Platform shall be restricted to the Company’s personnel;
(e) the Company shall use reasonable precautions and security measures designed to ensure ongoing protection against Viruses and unauthorised access to the servers hosting the Platform;
(f) the Company shall report all unplanned access down time, system failures, threats within or to the cloud environment and actual or attempted breaches of the security of the cloud environment (Negative Operational Events) of the Platform to the Licensee in writing as soon as practically possible after becoming aware of these Negative Operational Events; and
(g) all communications between an Authorised User’s browser and server are sent using SSL protocols and therefore encrypted. All user logins and passwords are cryptographically hashed. Information will be stored unencrypted in the database and this database is only accessible by the Company’s engineering personnel.
(a) The Licensee acknowledges that the Platform may link to third party websites or feeds that are connected or relevant to the Platform. Any link from the Platform does not imply the Company’s endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, the liability of the Company for those websites or feeds is excluded.
(b) Through the use of web services and APIs, the Platform and the SaaS Services interoperate with a range of third party service features. The Company does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Company may cease to make available that feature to the Licensee. To avoid doubt, if the Company exercises its right to cease the availability of a third party feature for the reasons above, the Licensee is not entitled to any refund, discount or other compensation.
Subject to the terms of this agreement, the Company will provide to the Licensee the SaaS Services in accordance with the applicable Service Levels.
(a) If the Company will be or expects to be unable to provide to the Licensee the SaaS Services in accordance with the relevant Service Levels, the Company will provide the Licensee with details, in writing, of the failure and the steps it will take to prevent or mitigate the occurrence of the failure.
(b) The Company will not be responsible for any failure to comply with any Service Level if such failure is caused by the Licensee’s failure to comply with its obligations under this agreement, failure or fault in, or defective, hardware, infrastructure, systems, networks, software, or equipment utilised by the Licensee or incorrect operation by the Licensee of the Platform or the Licensee’s own access facilities.
(a) If the Licensee requires any technical support, the Licensee must make a request for support (Support Request) by sending an email to its Account Manager.
(b) All Support Requests must be made by the Point of Contact. The Company will not accept any Support Requests made by any other employees or agents of the Licensee.
(a) The Company will issue invoices:
(b) All Fees must be paid by the Licensee to the Company in accordance with the Payment Terms using the Payment Method.
(a) Expressions set out in italics in this clause 7.2 bear the same meaning as those expressions in the GST Law.
(b) All Payments have been set or determined without regard to the impact of GST.
(c ) Subject to clause 7.2(e), if the whole or any part of a Payment by a party (including amounts referred to in clause 7.2(d)) is the consideration for a taxable supply, the GST Amount in respect of the Payment must be paid to the Company of the taxable supply as an additional amount, at the same time and in the same manner as the Payment is otherwise payable or as otherwise agreed in writing.
(d) If a Payment due under this agreement is a reimbursement or indemnification by one party of an expense, loss or liability incurred or to be incurred by the other party, the Payment will exclude any GST forming part of the amount to be reimbursed or indemnified to the extent to which the other party can claim an input tax credit.
(e) A party’s obligation to make payment under clause 7.2(c ) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
(f) Where the Company has become subject to any penalties or interest because of a late payment by the Company to the Australian Taxation Office of any GST Amount and that late payment is a result of the failure of the recipient to comply with the terms of this clause 7.2, the recipient must pay to the Company an additional amount on demand equal to the amount of those penalties and interest.
(g) The recipient must indemnify the Company on demand in respect of all loss or damage arising from a breach by the recipient of its obligations under this clause 7.2.
If:
(a) the Fixed Licence Fee or New Licence Fee is not received prior to the commencement of the next Licensing Period; or
(b) there is non-payment of the Continuing Licence Fee during or in respect of a Rollover Period,
the Company has the right, at any time and with immediate effect by notice in writing to the Licensee, to:
(c ) suspend all Services;
(d) remove all content from the Webpage (including User Content); and/or
(e) terminate this agreement.
The Licensee acknowledges that:
(a) all User Content belongs to the Licensee and the Licensee grants the Company a limited, non-exclusive, non-transferable, royalty-free and revocable licence to use the User Content (Content Licence) for the Term to allow the Company to perform its obligations under this agreement;
(b) the Company will manage the User Content that is published on the Platform;
(c ) the Company has the right to amend or remove any User Content from the Platform; and
(d) the Company is not liable for any errors or omissions or inaccurate User Content on the Platform.
(a) The Company acknowledges and agrees that all User Data is owned by the Licensee.
(b) The Licensee acknowledges that:
(c ) The Licensee must arrange all consents and approvals that are necessary for the Company to access the User Data or User Personal Information as described in clause 8.2(b).
The Licensee grants to the Company a perpetual, non-exclusive, irrevocable, transferable and royalty-free licence to use, reproduce, edit, adapt and exploit the De-identified User Data for any purpose in connection with Company’s business (including the purpose of further development of the Platform and the Company’s other goods and services, and reporting).
(a) The Licensee is responsible for obtaining all consents and permissions required, and satisfying all legal requirements for it to collect, store, access and use the User Data or the User Personal Information for any purpose in connection with this agreement.
(b) The Company acknowledges that, in providing the Platform or the SaaS Services, it may deal with and the Platform may host User Personal Information when, and for the purpose of, providing the Platform and the SaaS Services under this agreement.
(c ) The Licensee warrants that:
(d) If the Licensee notifies the Company under clause 8.4(c )(iii), it will conduct and will assist the Company in conducting a reasonable and expeditious assessment of the breach or suspected breach to ensure compliance with all mandatory data breach reporting obligations arising under the Privacy Laws,
(a) The Licensee acknowledges and agrees that to the extent that the User Data contains User Personal Information, in collecting, holding and processing that information through the provision of the Platform or the SaaS Services, the Company is acting as an agent of the Licensee for the purposes of applicable Privacy Laws.
(b) The Licensee must obtain all necessary consents from the relevant individual to enable the Company to collect, use, hold and process that information in accordance with this agreement.
The Licensee warrants and represents that User Data does not, and the providing of User Data to the Company does not, breach the privacy, confidentiality, or Intellectual Property Rights of any person at any time, or any applicable law or regulation.
(a) The Company will use commercially reasonable efforts to back-up User Data each night.
(b) In the event of any loss or damage to User Data that does not result from a negligent act or omission by the Company, the Licensee’s sole and exclusive remedy will be for the Company to use commercially reasonable endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by the Company.
(c ) The Company will not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party, except by those third parties recommended or engaged by the Company to perform services related to User Data storage, maintenance and back-up.
(d) The Licensee agrees to keep a separate back-up copy of all User Data uploaded by it onto the Platform.
(a) The Licensee agrees that Company may store User Material in secure servers provided by the Google Cloud Platform in Sydney, Australia and the Company may access the User Material in said location from time to time. The Company may not, without the Licensee’s written consent, change:
(b) The Licensee acknowledges and agrees that the Company relies on internet and data storage services which are provided or controlled by third parties to provide the Platform and the SaaS Services, and impairments or disruptions to internet or data storage services may result in the Platform or the SaaS Services being unavailable, and the Company will not be liable for any costs or expenses incurred by the Licensee arising out of such impairments or disruptions.
(a) All Intellectual Property Rights in or subsisting in all information, materials, products and services developed or provided by the Company in connection with this agreement, including:
(b) To the extent, if any, that ownership of the Company IP does not automatically vest in the Company by virtue of this agreement or otherwise, the Licensee hereby transfers and assigns to the Company all rights, title and interest which it may have in and to the Company IP.
(a) All Intellectual Property Rights in or subsisting in all information and materials provided by the Licensee to the Company in connection with this agreement, including all creative content, marketing materials, documentation, know-how, methodologies, equipment, processes, web publications, trade secrets and customer lists (Licensee IP) shall remain the sole and exclusive intellectual property of the Licensee or its licensors.
(b) To the extent, if any, that ownership of the Licensee IP does not automatically vest in the Licensee by virtue of this agreement or otherwise, the Company hereby transfers and assigns to the Licensee all rights, title and interest which it may have in and to the Licensee IP.
If the Licensee provides the Company with ideas, comments or suggestions relating to the Platform or the SaaS Services (together Feedback):
(a) all Intellectual Property Rights in that feedback, and anything created as a result of Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Company; and
(b) the Company may use or disclose the Feedback for any purpose.
Each party represents and warrants to the other that:
(a) the execution and delivery of this agreement by it and the performance of its obligations will not breach any law to which it is subject, or breach any contract to which it is a party or by which it is bound; and
(b) it either has or will obtain all licences, permits, contracts or agreements which are required for it to perform its obligations under this agreement.
The Company warrants that:
(a) to its knowledge, neither the Platform nor the use of the Platform by the Licensee as contemplated by this agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party;
(b) to its knowledge, no further authorisation is required to grant the Licensee the rights granted under this agreement; and
(c ) the SaaS Services will be provided with reasonable due care and diligence.
The Licensee warrants that:
(a) to its knowledge, neither the Licensee IP nor the use of the Licensee IP in conjunction with the Platform as contemplated by this agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party;
(b) it will not, and it will procure that each Authorised User and each other person under the Licensee’s direction or control does not:
(c ) it will notify the Company immediately if there are any breaches of clause 10.3(b).
The Licensee acknowledges and agrees that:
(a) the Company may, from time to time, publish or permit the publication of content on the Platform which is sponsored or commissioned by a third party (Sponsored Content) without any compensation to the Licensee, and the Licensee must not remove, or attempt to remove, any of the Sponsored Content;
(b) the Company does not warrant that the Platform and the SaaS Services will be uninterrupted, error-free or completely secure;
(c ) the Company does not warrant that the User Data will be completely secure; and
(d) the Company is not responsible or liable for monitoring or otherwise ensuring the integrity, completeness or accuracy of any of the User Data.
(a) The Licensee must not, and must procure that each Authorised User and each other person under the Licensee’s direction or control does not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform:
(b) The Company may, without liability or prejudice to its other rights against the Licensee, immediately suspend and/or disable the Licensee’s access to the Platform if the Company reasonably believes the Licensee, any Authorised User, or any person under Licensee’s direction or control has breached this clause 11.1(a).
(c ) If the Company suspends and/or disables the Licensee’s access to the Platform under clause 10.2(b), it will as soon as practically possible notify the Licensee of:
The Licensee will use all prudent and reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, immediately notify the Company.
When accessing the Platform, the Licensee must, and must procure that the Authorised Users do:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others or the Company;
(b) correctly identify the sender of all electronic transmissions;
(c ) not attempt to undermine the security or integrity of the Platform;
(d) not use, or misuse, the Platform in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Platform;
(e) not attempt to view, access or copy any material or data other than that to which the Licensee is authorised to access;
(f) use the Platform in a manner, nor transmit, input or store any User Content or User Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is incorrect or misleading; and
(g) comply with any terms of use on the Website, as updated from time to time by the Company.
(a) Without limiting clause 11.3, no individual other than Authorised Users may access or use the Platform.
(b) The Licensee may authorise any member of its personnel to be an Authorised User.
(c ) The Licensee must procure each Authorised User’s compliance with this agreement.
(d) A breach of any term of the agreement by the Licensee’s personnel or in that capacity including, to avoid doubt, an Authorised User, is deemed to be a breach of the agreement by the Licensee.
A party (Recipient) may not disclose, divulge or release any Confidential Information of the other party (Discloser) to any third party without the prior written consent of the Discloser, nor will the Recipient use any Confidential Information of the Discloser for any purpose other than exercising a right or fulfilling an obligation under this agreement.
The Recipient may disclose the Confidential Information of the Discloser to its officers, employees and contractors, solely for the purposes of performing or receiving the SaaS Services under this agreement.
The obligations under this clause 12 do not apply in respect of:
(a) information which is generally known to the public other than as a result of a breach of this agreement;
(b) information which that Recipient can prove was legitimately known to it independently of this agreement; or
(c ) information of the Discloser which the Recipient is required to disclose where:
(a) The Recipient must, on the Discloser’s written demand or on the expiration or termination of this agreement, whichever occurs first, return to the Discloser or destroy (at the option of the Discloser) any documents or other media in the Recipient’s possession, power or control containing any of the Discloser’s Confidential Information.
(b) To avoid doubt, clause 12.4(a) does not require the Company to return or destroy any Confidential Information contained in back-up copies of User Data to the extent that the Company is required to retain such User Data.
The Company may, upon written notice to the Licensee, suspend the provision of all or part of a SaaS Services, including access to the Platform, without liability to the Licensee, if:
(a) the Licensee is in material breach of any other obligation under this agreement; or
(b) the Company is required to do so by law.
(a) Either party may terminate this agreement, during the Rollover Period, by providing the other party with 30 days’ written notice.
(b) If the Company gives the Licensee written notice of alterations to this agreement in accordance with clause 19.1 (Alterations Notice), the Licensee may, during the 30 day period after the Licensee receives the Alterations Notice, terminate this agreement by providing the Company with 30 days’ written notice.
A party (Non-Defaulting Party) may terminate this agreement at any time during the Term by written notice upon the expiration of five Business Days where the other party (Defaulting Party) commits a material breach of this agreement and:
(a) the breach cannot be remedied; or
(b) where the breach can be remedied, the Defaulting Party fails to remedy the breach within 20 business days of being notified in writing of the breach by the Non-Defaulting Party.
Subject to sections 415D, 434J and 451E of the Corporations Act, either party may terminate this agreement immediately by written notice if the other party suffers an Insolvency Event.
Upon termination of this agreement, the Licence is automatically revoked and the Licensee must immediately:
(a) pay any outstanding invoices issued by the Company; and
(b) remove the Webpage from the internet.
The rights of termination conferred by the provisions of this clause are without prejudice to any right of action or remedy of a party in respect of any breach of any term of this agreement.
Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against, and must pay on demand, all Losses suffered or incurred by the Indemnified Party or any of its officers, employees, agents or related bodies corporate arising out of or in connection with:
(a) a wilful, unlawful or negligent act or omission by the Indemnifying Party;
(b) a breach of law by the Indemnifying Party;
(c ) a breach of clause 10.2(a) or 10.3(a) (as applicable) by the Indemnifying Party; or
(d) a breach of the confidentiality obligations in clause 12.1 by the Indemnifying Party,
except if and to the extent that such Losses were caused by or contributed to by the act or omission of the Indemnified Party or any of its officers, employees, agents or related bodies corporate.
The indemnities in this clause survive the termination of this agreement.
(a) If the Licensee is a “consumer” under the Australian Consumer Law, the SaaS Services and the Platform come with consumer guarantees under the Australian Consumer Law that cannot be excluded by this agreement. Nothing in this agreement affects the Licensee’s statutory rights as a consumer.
(b) For major failures with the SaaS Services and/or the Platform, a consumer is entitled:
A consumer is also entitled to be compensated for any other reasonably foreseeable loss or damage.
(c ) If the failure does not amount to a major failure, a consumer is entitled to have problems with the SaaS Services and/or the Platform rectified in a reasonable time and, if this is not done, to cancel this agreement and obtain a refund for the unused portion of the Fees.
To the maximum extent permitted by law and subject to clause 16.1, unless otherwise expressly provided in this agreement, the Company’s liability for Losses incurred by the Licensee arising out of or in connection with this agreement (including in connection with the Company not meeting any Service Levels and whether in contract, tort (including negligence), statute or otherwise) is limited, in aggregate, to the total of the Fees paid by the Licensee to the Company in the six month period immediately preceding the event giving rise to the Loss.
(a) To the fullest extent permitted by law, subject to clause 16.1, and except as expressly provided in this agreement, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise, relating to the Platform and the SaaS Services supplied by the Company are excluded.
(b) The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between the Company and the Licensee by law including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, to the extent to which the Company is entitled to do so and subject to clause 16.1, the Company’s liability will be limited at its option to:
(c ) To the fullest extent permitted by law, the Company is not liable to the Licensee, whether in contract, tort (including negligence), statute or otherwise, in connection with any right or remedy conferred on the Licensee by law, or any liability of the Company to the Licensee as a result of or in connection with this agreement:
although this limitation will not apply if and to the extent that the Company is also liable for that loss caused by its breach of the consumer guarantees under the Australian Consumer Law.
A party will not be liable or deemed to be in default for any failure or delay of performance (other than making a payment) under this agreement caused by a Force Majeure Event, provided always that the party whose performance is affected by such Force Majeure Event must promptly give written notice of such Force Majeure Event to the other party, specifying the obligations it cannot perform, fully describing the Force Majeure Event and estimating the time during which the Force Majeure Event will continue.
A party claiming the benefit of clause 17.1 will use reasonable endeavours promptly to overcome the adverse consequences and effects of the Force Majeure Event in question, and from the time of giving notice of such a Force Majeure Event that party’s obligations to perform will be suspended to the extent that that party cannot perform those obligations, for the duration of the actual delay arising out of the Force Majeure Event.
If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 60 days, either party may immediately terminate this agreement on providing notice in writing to the other party.
A notice, demand, consent, approval or communication under this agreement (Notice):
(a) must be in writing and in English directed to the recipient’s address for notices specified in the Details (as varied by any Notice);
(b) must be hand delivered, left at or sent by prepaid post or email to the recipient’s address for notices specified in the Details (as varied by any Notice); and
(c ) may be given by an agent of the sender.
A Notice given in accordance with clause 18.1 takes effect when received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered or left at the recipient’s address, on delivery;
(b) if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia); and
(c ) if sent by email, upon receipt by the recipient email server (even if received or categorised or filtered as unwanted email or spam), if sent as an email, unless the sender receives an automated notice that delivery has failed,
but if the delivery or transmission under paragraph (a) or (c ) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours after that delivery, receipt or transmission.
Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this agreement may be served by any method contemplated by this clause in addition to any means authorised by law.
The Company may alter this agreement from time to time by giving no less than 60 days’ written notice of the alterations to the Licensee.
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.
A party may only assign this agreement or a right under this agreement with the prior written consent of each other party.
This agreement may be executed in counterparts. All executed counterparts constitute one document. This agreement may be executed by either of the parties by duly executing a counterpart and forwarding a copy of the signed counterpart to the other party.
The parties agree that each party shall bear its own costs in relation to, and associated with, this agreement.
Except where this agreement expressly states otherwise, the rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
Each party must do, at its own expense, everything reasonably necessary to give full effect to this agreement and the transactions contemplated by it (including executing documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.
If the whole or any part of a provision of this agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.
Any indemnity or obligation of confidentiality in this agreement is independent and survives termination of this agreement. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.
Each person who executed this agreement on behalf of a party declares that he or she has no notice of the revocation or suspension by the grantor or in any other manner of the power of attorney under the authority of which he or she executes this agreement.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
This agreement does not create a relationship of employment, trust, agency or partnership between the parties.
The rights provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.
This agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales and the parties, by entering into this agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.
A party may exercise a right, at its discretion and separately or concurrently with another right.
1. The Company will make the SaaS Services available to the Licensee on a 24/7 (twenty-four hours per day/seven days per week) basis, excluding downtime due to any of the following (referred to as Excusable Downtime):
2. The Company will use reasonable endeavours to ensure that the Platform will be available to the Licensee at least 99% of the time each calendar month, excluding Excusable Downtime.
3. If the availability of the Platform is less than 99% for any calendar month (excluding Excusable Downtime), the Licensee may within one week of the event that caused the service outage provide the Company with a notice of material breach subject to a 30 day cure period (Cure Period).
4. If the service availability is less than 99% during the Cure Period (excluding Excusable Downtime), the Licensee may elect to:
5. To the extent permitted by law, there will be no refunds for any previous Fee payments made by the Licensee.
6. The Company will respond to Support Requests as follows:
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