These terms and conditions and the applicable Order together form an agreement between the Company and the Customer (the agreement). The agreement governs the Company’s provision of, and the Customer’s use and access of, the Services.
Important Information
Please note that:
if automatic renewal is agreed in an Order, this agreement will automatically renew for a further Subscription Period (being twelve (12) months) unless one of the parties provides written notice to the other party at least 30 days prior to the end of the current Subscription Period that it does not wish to renew (see clauses 3.2 and 19 for how a party may provide written notice that it does not wish to renew);
the Company may vary the Fees and the terms of this agreement on renewal of this agreement but the Customer will have the right to accept or reject these by not renewing the agreement (see clause 3.2);
each party to this agreement provides indemnities in favour of the other party, including for:
a fraudulent or wilful breach of this agreement;
a breach of clause 11.2(a) or 11.3(a) (as applicable) (relating to the Company IP or the Customer IP); and
a breach of confidentiality obligations,
by the indemnifying party or its Personnel (see clause 16.1); and
the Company limits its overall liability under this agreement (see clause 17.2) and excludes certain forms of liability under this agreement (see clause 17.3 and 17.4), although nothing in this agreement affects the Customer’s statutory rights as a consumer.
Key Terms
Commencement Date | The date specified in the applicable Order or the date on which the Customer first accesses the Platform, whichever occurs earlier. |
Company | Partlycloudy.ai Pty Ltd ACN 688 007 623 of Level 16, Tower 2 Darling Park, 201 Sussex Street, Sydney NSW 2000, Australia |
Customer | The party identified as the customer in the applicable Order. |
Fees | The fees for the Services set out in the applicable Order and the New Licence Fee (or either as applicable). Fees are exclusive of GST. |
Initial Term | One Subscription Period commencing on the Commencement Date. |
Payment Terms | Refer to clause 8.1 and the applicable Order. |
Payment Method | Payments of Fees are to be made by any of the payment methods set out in the applicable Order or invoice. |
Platform | The ‘PartlyCloudy’ online platform, access to which provides decision-support outputs based on weather and climate inputs. |
Point of Contact | The individual notified by the Customer to the Company as the point of contact for the Support Services. |
Services | The Company will provide the following services as part of the Fee:
|
Subscription Period | 12 months (unless otherwise specified in the applicable Order). |
OPERATIVE PARTS
1. Defined terms and interpretation
1.1 Defined terms
Capitalised terms used in the Key Terms have the meaning adjacent to those terms, and the following definitions apply unless the context requires otherwise:
App has the meaning given in clause 5.2(b).
App Stores means the Apple and Google Play stores.
Australian Consumer Law means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Authorised User means any of the Customer’s personnel authorised to use the Platform in accordance with clause 12.3.
Business Day means:
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
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 10.1(a).
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).
Customer Data means any information (including information contained in documents or material):
uploaded directly into the Platform by the Customer;
which has been provided by the Customer to the Company, including in electronic storage devices, in order for the Company to perform the Services; or
about the Customer which has been generated on or collected via the Platform.
Customer IP has the meaning given in clause 10.2(a).
Customer Personal Information means Personal Information that is contained in the Customer Data.
De-identified Customer Data means Customer Data in respect of which all Personal Information and information identifying the Customer or any Authorised User has been removed, by such Customer Data being aggregated with other data sets, anonymised or otherwise.
Derived Outputs means any analytics, forecasts, alerts, reports, visualisations, risk scores, models, or insights generated by the Platform and accessible to the Customer via the Platform.
Details means, in relation to a party, the details for that party set out in this agreement.
Discloser has the meaning given in clause 13.1.
Force Majeure Event means any circumstance beyond the reasonable control of a party (other than lack of funds), whether or not foreseeable at the date of this agreement, which results in a party being unable to observe or perform or continue to perform on time an obligation under this agreement.
GST has the meaning given in the GST Law.
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:
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;
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;
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;
that body corporate becomes insolvent or any circumstance exists or arises which would require a court to presume that that body corporate is insolvent;
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;
that body corporate stops, suspends or threatens to stop or suspend paying its debts as and when they fall due; or
any analogous event under the laws of any applicable jurisdiction; or
anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
Intellectual Property Rights means all present and future rights to:
trademarks, trade names, domain names, logos, patents, inventions, design rights, copyrights, circuit layout rights, trade secrets, processes, algorithms, source code, databases and the right to have information kept confidential (including know-how), and all similar rights in any part of the world; and
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.
Loss means loss, liability or cost.
New Licence Fee has the meaning given in clause 3.2(b)(iv).
Non-Renewal Notice has the meaning given in clause 3.2(a).
Order means an Order Form that is accepted by the Company.
Order Form means a sales order form and/or a quote for Services issued by the Company to the Customer.
Payment means:
the amount of any monetary consideration (other than a GST Amount payable under clause 8.2); or
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 Act.
Platform Data means any information (including information contained in documents or material) accessible by the Customer via the Platform, including Third Party Data and any Derived Outputs.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Policy means the Company’s privacy policy available at partlycloudy.ai/privacy as amended from time to time.
Recipient has the meaning given in clause 13.1.
Renewal Notification has the meaning given in clause 3.2(b).
Renewal Term has the meaning given in clause 3.2(a).
Related Body Corporate has the meaning given in section 50 of the Corporations Act.
Service Levels means, in respect of the Platform, the level of service as specified in the Order Form or otherwise notified by the Company to the Customer (in either case if and as applicable).
Support Request has the meaning given in clause 7.2(a).
Subscription Term means the Initial Term and each Renewal Term (if and as applicable), unless terminated earlier in accordance with this agreement.
Third Party Data has the meaning given in clause 6(c).
Underlying Systems means the IT solutions, systems and networks (including software, firmware and hardware) used to provide the Platform and the Services, including any third party solutions, systems, data hosting providers and networks.
Usage Right has the meaning given in clause 4.1(a).
Upgrades means any upgrades made to or new versions released of the Platform in accordance with clause 5.3.
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.
1.2 Interpretation
In this agreement, except where the context otherwise requires:
the singular includes the plural and vice versa and a gender includes other genders;
other grammatical forms of a defined word or expression have a corresponding meaning;
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;
a reference to a document or agreement, includes the document or agreement as novated, altered, supplemented or replaced from time to time;
a reference to AUD, AU$ or $ is to Australian dollars;
a reference to time is to Sydney time;
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;
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
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
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.
1.3 Headings
Headings are for ease of reference only and do not affect interpretation.
2. Agreement
2.1 Agreement
This agreement consists of the following documents (Agreement Documents):
these terms and conditions
the applicable Order.
2.2 Order Forms
Each Order Form issued by the Company is valid for 30 days from the date the Order Form is received by the Customer. If the Customer wishes to accept an Order Form, the Customer must issue to the Company an Order Form executed by the Customer via email within 30 days of receiving that Order Form. If the Customer does not respond to an Order Form within 30 days of receiving that Order Form, the Customer is deemed to have rejected that Order Form. In addition, the Customer may reject an Order Form and make a counteroffer to the Company within 30 days of receiving that Order Form.
Upon acceptance of an Order Form by the Customer, an Order shall arise, being a separate agreement between the Customer and the Company incorporating the terms of the Order Form and the provisions of these terms and conditions.
Unless expressly accepted by the Company in writing, no terms or conditions offered by the Customer shall apply to an Order or this agreement, including any terms or conditions attached to or set out in an Order Form.
2.3 Inconsistency
If there is any discrepancy, inconsistency or ambiguity within or between the Agreement Documents, these terms and conditions will prevail to the extent of the discrepancy, inconsistency or ambiguity. An inconsistency will be considered to exist if, regardless of the purpose of the provision, the relevant subject matter or action to be taken is dealt with differently in the Agreement Documents.
3. Term and Renewal
3.1 Initial Term
This agreement begins on the Commencement Date and will continue for the Initial Term unless terminated earlier in accordance with this agreement.
3.2 Renewal
If automatic renewal is agreed in an Order, the Initial Term will automatically be renewed for successive Subscription Periods (each a Renewal Term) unless either party provides a notice in writing to the other party at least 30 days prior to the end of the Initial Term or the then current Renewal Term (as applicable) (Non-Renewal Notice) that it does not wish to renew the agreement for a further Subscription Period.
The Company will notify the Customer in writing to the email address of the Customer (as notified by the Customer to the Company, and as varied by any Notice) at least 60 days prior to the end of the Initial Term and each Renewal Term of the following (Renewal Notification):
that the agreement will be automatically renewed for a further Subscription Period at the end of the Initial Term or relevant Renewal Term if neither party issues a Non-Renewal Notice to the other party in accordance with clause 3.2(a) at least 30 days before the end of the Initial Term or the relevant Renewal Term;
how the Customer may issue a Non-Renewal Notice to the Company in accordance with the notice requirements under clause 3.2(a);
the last day on which the Customer may issue a Non-Renewal Notice before this agreement is renewed for a further Subscription Period; and
full details of any proposed variation of the terms and conditions of this agreement that will take effect from renewal and how the proposed variation differs from the terms and conditions of this agreement prior to renewal, including any change in Fees for the next Renewal Term (New Licence Fee).
On renewal of this agreement for each Renewal Term, this agreement will continue from the end of the Initial Term or relevant Renewal Term for the duration of the next Renewal Term and will otherwise be subject to the terms and conditions of this agreement, as varied in accordance with the applicable terms and conditions, if any, of the Renewal Notification, unless terminated earlier in accordance with this agreement.
4. Platform Usage Right
4.1 Grant of Usage Right
Subject to the payment of the Fee by the Customer, the Customer is granted a limited, non-exclusive and non-transferable right to use the Platform for the sole purpose of receiving the Services for the Subscription Term (Usage Right).
All other rights and licences not expressly granted to the Customer by the Company are reserved by the Company.
4.2 No Sub-Licensing or Assigning
The Usage Right cannot be assigned, exploited or sub-licensed by the Customer without the Company’s prior written consent.
5. Services
5.1 Services
Subject to payment of the Fees, the Company will provide the Services to the Customer for the duration of the Subscription Term.
5.2 Web Service and App
The Company will make the Platform available:
as a web service via a URL (Web Service); and
as an application on the App Stores known as “PartlyCloudy” (or such other name as determined by the Company) (App) using an account set up on the App Stores by the Customer.
5.3 Upgrades
The Customer acknowledges and agrees that the Company may upgrade or release a new version of the Platform:
at its discretion, provided that such upgrade or new version does not, or is not reasonably expected to, result in the Company not complying with the Service Levels (if any) or the Platform overall being degraded or materially less efficient to the Customer; or
as is necessary to meet the requirements of any applicable law or regulation.
The Company may, from time to time, develop new features or optional Upgrades for the Platform. Unless such new features or optional Upgrades are included in the Fees set out in an Order, the Company may, at its sole discretion, offer these new features or optional Upgrades to the Customer for an additional fee to be agreed between the parties.
5.4 Hosting
The Company shall manage the hosting of the Platform and any other associated domains belonging to the Company. The Platform is accessible via a web browser.
5.5 Security
The Company shall follow the security measures and processes set out below:
the Platform shall be run in an online environment under the Company’s control;
the Customer Data shall be segmented from third party access;
the Platform shall be hosted by a reputable third-party hosted data provider;
the Company shall use reasonable precautions and logical security measures designed to ensure ongoing protection against Viruses and unauthorised access to the servers hosting the Platform; and
the Platform will be secured with industry-standard encryption, strong authentication and role-based access.
6. Third Parties
The Customer 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.
Through the use of web services and APIs, the Platform interoperates 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 Customer, except where the feature forms part of the Underlying Systems. To avoid doubt, if the Company exercises its right to cease the availability of a third party feature for the reasons above, the Customer is not entitled to any refund, discount or other compensation.
The Customer also acknowledges that the Derived Outputs or other information available to the Customer via the Platform may be generated from data obtained or licensed by the Company from third-party data providers including public meteorological datasets (Third Party Data). Without limiting the previous sentence, if a Third Party Data provider ceases to provide that Third Party Data or ceases to make that Third Party Data available on reasonable terms, the Company may cease to make available that Third Party Data to the Customer. To avoid doubt, if the Company exercises its right to cease the availability of Third Party Data for the reasons set out in this clause, the Customer is not entitled to any refund, discount or other compensation. The Company does not make any warranty or representation on the accuracy or availability of Third Party Data. To the maximum extent permitted by law, the liability of the Company for any Third Party Data is excluded.
7. Service Levels and support
7.1 Level of Service
Subject to the terms of this agreement, the Company will provide to the Customer the Platform in accordance with the applicable Service Levels.
7.2 Support
If the Customer requires any technical support, the Customer shall email the Company at support@partlycloudy.ai or call the support number advised by the Company (Support Request).
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 Customer.
8. Fees and Invoicing
8.1 Payment of Fees
Subject to the terms of an Order Form, the Company will invoice the Customer for the Fees monthly in arrears.
Invoices rendered by the Company will be paid by the Customer using the Payment Method within 30 days of receipt of a valid tax invoice (Payment Terms).
8.2 GST
Expressions set out in italics in this clause 8.2 bear the same meaning as those expressions in the GST Law.
All Payments have been set or determined without regard to the impact of GST.
Subject to clause 8.2(e), if the whole or any part of a Payment by a party (including amounts referred to in clause 8.2(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.
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.
A party’s obligation to make payment under clause 8.2(c) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
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 8.2, the recipient must pay to the Company an additional amount on demand equal to the amount of those penalties and interest.
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.
8.3 Non-payment
If a Fee is not received in accordance with the Payment Terms, the Company has the right, at any time and with immediate effect by notice in writing to the Customer, to do one or more of the following:
suspend all Services;
remove all Customer Data from the Platform; and
terminate this agreement.
9. Customer Data
9.1 Customer Data
As between the Customer and the Company, all Customer Data is owned by the Customer.
The Customer grants to the Company, and warrants that it has the right to grant to the Company, a limited, non-exclusive, non-transferable and royalty-free licence to use the Customer Data for the Subscription Term to allow the Company to perform its obligations under this agreement.
9.2 De-identified Customer Data
The Customer grants to the Company, and warrants that it has the right to grant to the Company, a perpetual, non-exclusive, irrevocable, transferable and royalty-free licence to use, reproduce, edit, adapt and exploit the De-identified Customer Data for:
any purpose in connection with the Company’s business (including the purpose of further development of the Platform and the Company’s other goods and services, and reporting); and
general (non-Customer specific) industry insights and reporting.
9.3 Privacy
In providing the Services, the Company may deal with and the Platform may host Customer Personal Information when, and for the purpose of, providing the Services under this agreement.
The Customer is responsible for obtaining all consents and permissions required, and satisfying all legal requirements:
for it to collect, store and disclose to the Company the Customer Personal Information for any purpose in connection with this agreement; and
to enable the Company to receive, host, disclose on the Platform and process Customer Personal Information in accordance with this agreement.
The Customer acknowledges and agrees that to the extent that the Customer Data contains Customer Personal Information, in collecting, hosting and processing that information through the provision of the Services, the Company is acting as an agent of the Customer for the purposes of the Privacy Act.
The Company must comply with its Privacy Policy when handling Customer Personal Information.
9.4 Warranty
The Customer warrants and represents that Customer Data does not, and the Customer providing Customer 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.
9.5 Access
The Company may permit access to the Customer Data by or disclose the Customer Data to:
any duly authorised law enforcement officer; or
any other person if required by law (including in response to any actual or suspected data breach),
and the Customer is responsible for direct and indirect costs associated with granting such access if the reason for the access or disclosure arises out of or in connection with the Customer’s acts or omissions.
10. Intellectual Property
10.1 The Company’s Intellectual Property Rights
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:
the Platform, including:
the source and object code;
any Upgrades;
Platform design and Platform functionality;
all other applications contained within the Platform;
Platform Data; and
all creative content, marketing materials, and documentation,
but excluding all ownership rights in the Customer Data (together, the Company IP), shall remain the sole and exclusive intellectual property of the Company or its licensors.
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 Customer hereby transfers and assigns to the Company all rights, title and interest which it may have in and to the Company IP.
The Company grants to the Customer a limited, non-exclusive, non-transferable, royalty-free licence to use the Platform Data for the Subscription Term to enjoy the benefit of the Services, provided that such usage licence is for internal business use only.
10.2 Customer’s Intellectual Property Rights
Subject to clause 10.3, all Intellectual Property Rights in or subsisting in all information and materials provided by the Customer to the Company in connection with this agreement (Customer IP) shall remain the sole and exclusive intellectual property of the Customer or its licensors.
To the extent, if any, that ownership of the Customer IP does not automatically vest in the Customer by virtue of this agreement or otherwise, the Company hereby transfers and assigns to the Customer all rights, title and interest which it may have in and to the Customer IP.
10.3 Feedback
If the Customer provides the Company with ideas, comments or suggestions relating to the Services and/or the Platform (together Feedback) during the Subscription Term:
all Intellectual Property Rights in the Feedback, and anything created as a result of the Feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Company; and
the Company may use or disclose the Feedback for any purpose.
11. Warranties and Acknowledgements
11.1 Mutual representations and warranties
Each party represents and warrants to the other that:
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
it either has or will obtain all licences, permits, contracts or agreements which are required for it to perform its obligations under this agreement.
11.2 The Company’s warranties
The Company warrants that:
to its knowledge, neither the Platform, nor the use of the Platform by the Customer as contemplated by this agreement, infringes, violates or misappropriates any Intellectual Property Rights of any third party;
to its knowledge, no further authorisation is required to grant the Customer the rights granted under this agreement; and
the Services will be provided with reasonable care and diligence.
11.3 The Customer’s warranties
The Customer warrants and undertakes that:
to its knowledge, neither the Customer IP nor the use of the Customer IP in connection with the Services or the Platform as contemplated by this agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party;
it will not, and it will procure that each Authorised User and each other person under the Customer’s direction or control does not:
use the Services or the Platform for any unlawful purpose;
allow any person other than an Authorised User to access the Platform using the Customer’s login credentials;
use the Services in any way that interrupts, damages, or impairs the Platform;
reproduce, modify, adapt or create derivative works of the Platform;
reverse engineer, copy, duplicate, disassemble, decompile, transfer, exchange or translate the Platform or otherwise seek to obtain or derive the source code of the Platform;
attempt to undermine the security or integrity of the Platform;
remove or tamper with any disclaimers or other legal notices published on the Platform;
combine the whole or any part of the Platform with any other software, data or material; and
attempt to view, access or copy any material or data other than that to which the Customer is authorised to access; and
it will notify the Company immediately if there are any breaches of clause 11.3(b).
11.4 Acknowledgments
The Customer acknowledges and agrees that:
the Company’s ability to provide the Platform in accordance with the Service Levels (if any) and this agreement is dependent on the Customer maintaining a stable internet connection as specified by the Company;
the Company does not warrant that the Platform and the Services will be uninterrupted, error-free or completely secure;
the Company does not warrant that the Customer Data will be completely secure;
the Company is not responsible or liable for monitoring or otherwise ensuring the integrity, completeness or accuracy of any of the Customer Data;
the Derived Outputs are predictive and probabilistic in nature and may contain inaccuracies or delays;
the Company makes the Platform and the Derived Outputs available to the Customer for informational and decision-support purposes only and the Platform and Derived Outputs are not a substitute for operational, engineering, safety, or regulatory judgment of the Customer;
the Customer must not rely on the Platform and the Derived Outputs as the sole basis for any operational, safety-critical or time-sensitive operational decision;
the Customer remains solely responsible for any actions taken or decisions made by it in reliance on the Platform (including the Derived Outputs); and
the Customer takes full responsibility for making its own evaluation of the currency, completeness and accuracy of any Derived Outputs, and the Company does not provide to the Customer any representation, warranty or indemnity in respect of the currency, accuracy and completeness of any Derived Outputs.
12. Customer’s obligations
12.1 General
The Customer must:
provide all necessary information, documentation and assistance reasonably required by the Company to provide the Services;
maintain any licences or authorisations required for the purposes of receiving the Services;
ensure all Customer Data required to use the Platform is in the form required by the Company; and
co-operate, and ensure that each of its Personnel co-operates, with the Company as the Company reasonably requires.
12.2 Viruses
The Customer must not, and must procure that each Authorised User and each other person under the Customer’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:
that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
that facilitates illegal activity; or
in a manner that is otherwise illegal or causes damage or injury to any person or property.
12.3 Authorised Users
No individual other than Authorised Users may access or use the Platform.
The Customer may authorise any member of its personnel to be an Authorised User.
The Customer must procure each Authorised User’s compliance with this agreement.
The Customer 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.
A breach of this agreement by the Customer’s personnel or in that capacity including, to avoid doubt, an Authorised User, is deemed to be a breach of the agreement by the Customer.
13. Confidentiality
13.1 Obligations
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.
13.2 Disclosure
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 Services under this agreement.
13.3 Exceptions
The obligations under this clause 13 do not apply in respect of:
information which is generally known to the public other than as a result of a breach of this agreement;
information which that Recipient can prove was legitimately known to it independently of this agreement; or
information of the Discloser which the Recipient is required to disclose where:
the disclosure is required to be made by law. If disclosure is required by law, prior to making the disclosure the Recipient must notify the Discloser within ten days (or if the Recipient is required by law to make the disclosure within a lesser period, such lesser period) of that fact and give the Discloser the opportunity to object to the disclosure; or
the disclosure is made to a professional legal adviser or professional auditor under a duty of confidentiality to the Recipient.
13.4 Return or destruction of all Confidential Information
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.
To avoid doubt, clause 13.4(a) does not require the Company to return or destroy any Confidential Information contained in back-up copies of Customer Data to the extent that the Company is required to retain such Customer Data.
14. Suspension of Services
The Company may, upon written notice to the Customer, suspend the provision of all or part of the Services and the Usage Right and disable the Customer’s access to the Platform, without liability to the Customer, if:
the Company reasonably believes the Customer, any Authorised User, or any person under Customer’s direction or control has breached clauses 11.3(b) or 12;
the Customer is in material breach of any other obligation under this agreement and where the breach is capable of being remedied, the Customer fails to remedy the breach within 10 Business Days of being notified of the breach; or
the Company is required to do so by law.
If the Company suspends and/or disables the Customer’s access to the Platform under clause 14(a), it will as soon as practically possible notify the Customer of:
the suspension or disablement;
the event that has given rise to that suspension and/or disablement;
what investigations as to the event are being carried out; and
the conditions before, and the likely timing by which, the Customer may re-access the Platform.
15. Termination
15.1 Termination for breach
A party (Non-Defaulting Party) may terminate this agreement or an Order at any time during the Subscription Term by written notice if the other party (Defaulting Party) commits a material breach of this agreement and:
if the breach cannot be remedied, the Defaulting Party fails to offer adequate compensation for the breach within 20 Business Days of being notified in writing of the breach by the Non-Defaulting Party; or
if the breach can be remedied, the Defaulting Party fails to remedy the breach within 10 Business Days of being notified in writing of the breach by the Non-Defaulting Party.
15.2 Termination for insolvency
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.
15.3 Effect of termination
Upon termination of an Order:
the Customer’s Usage Rights under that Order will immediately be revoked;
any other outstanding Order will remain in effect, unless otherwise agreed by the parties in writing;
the Customer must immediately pay any outstanding invoices issued by the Company in respect of that Order.
Upon termination of this agreement:
the Usage Right is automatically revoked and all outstanding Orders will automatically terminate, unless otherwise agreed by the parties in writing; and
the Customer must immediately pay any outstanding invoices issued by the Company.
15.4 Without prejudice
The rights of termination conferred by this clause 15 are without prejudice to any right of action or remedy of either party in respect of any breach of this agreement or an Order which occurred prior to the time of termination.
16. Indemnity
16.1 Indemnity
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 fraudulent or wilful breach of this agreement by the Indemnifying Party;
a breach of law by the Indemnifying Party;
a breach of clause 11.2(a) or 11.3(a) (as applicable) by the Indemnifying Party; or
a breach of the confidentiality obligations in clause 13.1 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. An Indemnified Party is not entitled to claim Loss under this indemnity if and to the extent that it fails to take reasonable steps to mitigate its Loss.
16.2 Survival
The indemnity in this clause survives the termination of this agreement.
17. Limitation of Liability
17.1 Consumer guarantees
If the Customer is a “consumer” under the Australian Consumer Law, the 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 Customer’s statutory rights as a consumer.
For major failures with the Services and/or the Platform, a consumer is entitled:
to cancel this agreement; and
to a refund for the unused portion of Fees, or to compensation for its reduced value.
A consumer is also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, a consumer is entitled to have problems with the 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.
17.2 Limited liability
To the maximum extent permitted by law and subject to clause 17.1, the Company’s liability for Losses incurred by the Customer 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) other than Loss caused by the gross negligence, fraud, criminal conduct or wilful misconduct of the Company, is limited, in aggregate, to the total of the Fees paid by the Customer to the Company in the 12-month period immediately preceding the event giving rise to the Loss.
17.3 Exclusions
To the fullest extent permitted by law, subject to clause 17.1, 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 Services and the Platform are excluded.
To the fullest extent permitted by law, the Company is not liable to the Customer, whether in contract, tort (including negligence), statute or otherwise, in connection with any right or remedy conferred on the Customer by law, or any liability of the Company to the Customer as a result of or in connection with this agreement:
for any Loss incurred by the Customer arising out of or in connection with this agreement to the extent the Loss arises or is increased as a result of any Derived Outputs (including in connection with any action or decision by or on behalf of the Company on the basis of any such Derived Outputs);
for any Loss to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any Loss or damage, not arising naturally, that is, according to the usual course of things, from the relevant breach act or omission, whether or not such Loss may reasonably be supposed to have been in the contemplation of the parties at the time they entered the agreement as the probable result of the relevant breach; or
for any loss of revenue or profits of any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation (whether direct, indirect or consequential),
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.
17.4 Acknowledgments
The Customer acknowledges that, to the fullest extent permitted by law, the Customer accepts all liability as a result of the Services, except to the extent that such liability is caused by a defective performance by the Company of the Services.
18. Force Majeure
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.
19. Notices
19.1 Service of notices
A notice, demand, consent, approval or communication under this agreement (Notice):
must be in writing and in English directed to the recipient’s address for notices specified in the Details (as varied by any Notice);
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
may be given by an agent of the sender.
19.2 Effective on receipt
A Notice given in accordance with clause 19.1 takes effect when received (or at a later time specified in it), and is taken to be received:
if hand delivered or left at the recipient’s address, on delivery;
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
if sent by email, upon receipt by the recipient’s 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.
19.3 Process service
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.
20. General
20.1 Alterations
Subject to clause 3.2, this agreement may be altered only in writing signed by each party.
20.2 Approvals and consents
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.
20.3 Assignment
A party may only assign this agreement or a right under this agreement with the prior written consent of each other party.
The Company may assign its rights under this agreement to:
its Related Bodies Corporate; or
to a third party on the sale of the Company’s business or assets (or the business or assets of a Related Body Corporate of the Company) to that third party.
20.4 Marketing
The Customer agrees that the Company may reference the Customer as a customer of the Platform in its marketing materials, case studies, web pages, social media channels and other public announcements and publications, provided that the Company obtains the prior written consent of the Customer, such consent not to be unreasonably withheld.
20.5 Costs
The parties agree that each party shall bear its own costs in relation to, and associated with, this agreement.
20.6 No merger
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.
20.7 Entire agreement
This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous written agreements or understandings between the parties in connection with its subject matter.
20.8 Further action
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.
20.9 Severability
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.
20.10 Enforcement of indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.
20.11 Survival
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.
20.12 Attorneys
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.
20.13 Waiver
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.
20.14 Relationship
This agreement does not create a relationship of employment, trust, agency or partnership between the parties.
20.15 Governing law
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.
20.16 Remedies cumulative
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.