This Software as a Service (SaaS) Agreement (referred to hereinafter as “Agreement”), dated as of the last revision of these terms of service, and is between Dreemar Pty Ltd. (referred to hereinafter as “Service Provider”), with offices located at 35B Glenvale Crescent, Mulgrave, Victoria, 3170, Australia and You (referred to hereinafter as “Client”). WHEREAS Client requires third-party hosted “software as a service” (the “SaaS Services,” as further described herein) with respect to Client’s marketing and information technology needs; WHEREAS, Service Provider has agreed to provide the SaaS Services to Client, all on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:
Capitised terms used herein and not otherwise defined shall have the meanings set forth in this Section:
ABN means Australian Business Number.
Access Credentials means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify a person’s identity and authorisation to access and use the SaaS Services.
ACN means Australian Company Number.
Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.
Affiliate means any entity (including any person, without limitation, any corporation, company, partnership, limited liability company or group) that directly through one or more intermediaries, controls, is controlled by or is under common control with Service Provider or Client for so long as such control exists. For purposes of this definition, “control” means having more than fifty percent (50%) of the shares or other equity interest with voting rights in the legal entity or organisation at issue.
App means the Dreemar mobile application accessible from:
- Mobile:From Apple’s AppStore, Google Play and any other native or web-based mobile applications made available from time-to-time; and/or
- Web:From the URL www.dreemar.com (or any other domain used by the Company from time-to-time).
AR means augmented reality.
Asset means any digital media element that can be accessed, viewed, or interacted-with via the App as an AR element, and includes without limitation:
- 2D or 3D images, whether animated, moving or static;
- Computer games (or elements of games);
- 2D or 3D text whether animated, moving or static;
- A combination of the above; and
- Any other form of audio-visual media capable of being accessed via the App
Authorised Users means any Client employee, contractor or agent, or any other person authorised by Customer to access and use the SaaS Services through Client’s account under this Agreement.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
Corporations Act means the Corporations Act 2001 (https://www.legislation.gov.au/Details/C2017C00328).
Content means any media content accessible via the Dreemar Dashboard and/or App and includes each Asset and Trigger.
Client Data means any and all information, data, materials, works, or other content, relating to Client’s information that may be disclosed at any time to Service Provider by Client or Client’s employees, agents, consultants, contractors, or suppliers in anticipation of, in connection with, or incidental to Service Provider’s performance of the SaaS Services for or on behalf of Client.
Client’s System mans the entire solution delivered to the Client to manage, create, control and use the services provided by the Service Provider.
Customer means a Customer of the Client that uses the App to make Assets available to Users.
Documentation means any manuals, instructions or other documents or materials that Service Provider provides or makes available to Client in any form or medium and which describe the functionality, components, features or requirements of the SaaS Services or App materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
Disabling Code means any software, virus, Trojan horse, time bomb or other code that is harmful, disabling or which enables unauthorised access to the Service Provider Systems or Client Systems, or theft or damage to Client Data, or otherwise impairs the operation of the Service Provider Systems, any Client Systems, or any Third Party system utilised by Service Provider in the Servicer Provider Systems.
Dreemar Dashboard means the web-based Administrative Dashboard provided by the Service Provider from which the Assets are loaded, content created, and the system administered and controlled.
Endpoints means the URL of a server or service.
EULA means the End User License Agreement pertaining to the rights and limitations of the use of the App, which can be found at http://www.dreemar.com/eula.
Intellectual Property means any and all intellectual property rights whether registered or unregistered, and all applications for and renewals or extensions of such rights, including rights comprising or relating to: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) works of authorship, designs, copyrights and copyrightable works (including computer programs) and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all similar or equivalent rights or forms of protection.
Interfaces means the Service Provider’s file transfer communications interfaces and data feeds mechanisms between the Service Provider Systems and the Client’s Systems which are developed, operated, owned and maintained by Service Provider pursuant to this Agreement including, as applicable, any configuration and customisation required to meet the requirements of this Agreement, but excluding ownership of any customisation that constitutes a component or derivative of Client ownership and/or copyright.
Law means any statute, law, ordinance, regulation, rule, code, order, constitution, common law, judgment, decree or other requirement or rule of any federal, state, local or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
Marker means a two-dimensional image used to trigger a response within the App.
Permitted Uses means any use of the SaaS Services by Client or any Authorised User for the benefit of Client in or for Client’s business operations.
Person means an individual and any entity, including, but not limited to, any corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organisation, trust or association.
Privacy Act means the Privacy Act 1988 (https://www.legislation.gov.au/details/c2014c00076).
Process means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organise, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.
Service Provider Materials means all devices, documents, data, know-how, methods, processes, software and other inventions, works, technologies and materials, including any and all Service Software, Documentation, computer hardware, programs, reports and specifications, client software and deliverables provided or made available to Client in connection with Service Provider’s performance of the SaaS Services, in each case developed or acquired by the Service Provider independently of this Agreement.
Service Provider Personnel means all employees and agents of Service Provider, all subcontractors and all employees and agents of any subcontractor, involved in the performance of Services.
Supported Release means versions of Service Software whether via a website or a mobile application currently supported by Service Provider. Service Provider will support at a minimum the current generally available release in addition to the previous release of Service Software.
Representatives means a party’s employees, officers, directors, consultants, and, with respect to Client, solely those of Client’s independent contractors or service providers that are Authorised Users.
Response means a reaction to a trigger such as but not limited to the deployment of an Asset, a link to a Client or third-party website or portal, or similar action.
Site means the Company’s website accessible at https://dreemar.com/
Trigger means any contextual data that will trigger the deployment of an Asset when entered into the App and includes without limitation a Marker and geo-location data.
Third Party Materials means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Service Provider.
Upgrade means updating the Service Software to the most current generally available version.
User means any user that uses the App.
User Content means any designs, graphics, wireframes, images, videos, audio, information, documents, or other data that is uploaded into, or that otherwise forms part of the App experience.
3 Service Provider Obligations
Subject to and conditioned on Client’s and its Authorised Users’ compliance with the terms and conditions of this Agreement, during the Term, Service Provider agrees to provide to Customer and its Authorised Users access to certain of Service Provider’s hosted software and provide the following services: infrastructure and infrastructure monitoring and technical support for Client’s productive use of such services. Throughout the Term and at all times in connection with this Agreement, Service Provider will, in accordance with all terms and conditions set forth in this Agreement provide to Client and its Authorised Users the following services (“Services”):
3.1.1 The hosting, management and operation of the Service Software for availability and other services for remote electronic access and use by the Client, its Authorised Users and Users (“SaaS Services”) as described within this Agreement;
3.1.2 Support Services through email. Except for service downtime or degradation caused by a Force Majeure Event or any other circumstances beyond Service Provider’s reasonable control, including Client’s, Authorised User’s or any User’s use of Third Party Materials, misuse of the SaaS Services, or use of the Services other than in compliance with the express terms of this Agreement, the EULA and the Documentation. For avoidance of doubt, the SaaS Services do not include any third-party content or linked third-party websites, portals or any other media, material, service, or similar.
The Documentation for the Service Software will accurately and completely describe the functions and features of the Service Software, including all subsequent revisions thereto. The Documentation will be understandable by a typical end user and will provide Client, Authorised Users and User’s with sufficient instruction such that the Client, Authorised User or User can become self-reliant with respect to access and use of the SaaS Services. Client will have the right to make any number of additional copies of the Documentation for internal business purposes at no additional charge.
3.3 No Software Delivery Obligation
Service Provider has no software delivery obligation and will not ship copies of any of the Service Software used to provide the SaaS Services to Client as a part of the SaaS Services. Upon the end of the Agreement, Client’s right to access or use the Service Software specified in the Service Order and the SaaS Services will terminate.
3.4 Use of Subcontractors
Service Provider may from time to time in Service Provider’s discretion engage third parties to perform Services (each, a “Subcontractor”).
4 Client Obligations
4.1 Client Systems & Cooperation
Client, at all times during the Term to the Agreement, will: (a) set up, maintain and operate in good repair and in accordance with the Documentation all Client Systems on or through which the Services are accessed or used; (b) provide all cooperation and assistance as Service Provider may reasonably request to enable Service Provider to exercise Service Provider’s rights and perform Service Provider’s obligations under and in connection with this Agreement.
4.2 Corrective Action & Note
If Client becomes aware of any actual or threatened activity prohibited by Section 6.3, Client shall, and shall cause its Authorised Users to, immediately: (a) take all reasonable and lawful measures within respective control of Client and its Authorised Users that are necessary to stop the activity or threatened activity and to mitigate the effects of such activity (including, where applicable, by discontinuing and preventing any unauthorised access to the Services and Materials and permanently erasing from Client’s Systems and destroying any data to which any of the Users have gained unauthorised access); and (b) notify Service Provider of any such actual or threatened activity.
4.3 Suspension or Termination of Services
Service Provider may, directly or indirectly, suspend, terminate or otherwise deny Client’s, any Authorised User’s or any other third party’s access to or use of all or any part of the Services or Service Provider Materials, without incurring any resulting obligation or liability, if: (a) Service Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Service Provider to do so; or (b) Service Provider believes, in its good faith and reasonable discretion, that: (i) Client or any Authorised User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorised under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Client or any Authorised User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is lawfully terminated pursuant to its terms. This Section 6.3 does not limit any of either party’s other rights or remedies, whether at law, in equity or under this Agreement.
5 Authorisation & Restrictions
Subject to and conditioned on Client’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Service Provider hereby authorises Client, to access and use, during the Term, the Services and such Service Provider Materials as Service Provider may supply or make available to Client for the Permitted in accordance with the Documentation and the conditions and limitation set forth in this Agreement. In addition, Client is authorised to:
5.1.1 generate, print, copy, upload, download, store and otherwise process all digital and other content as may result from any access to or use of the SaaS Services;
5.1.2 prepare, reproduce, print, download and a reasonable number of copies of Documentation as may be necessary or useful for any Permitted Uses of the SaaS Services under this Agreement;
5.1.3 access and use the SaaS Services for management uses and applications as may be necessary or useful for the effective use of the SaaS Services for the Permitted Uses hereunder; and
5.1.4 perform, display, execute, and reproduce and distribute and otherwise make available to Authorised Users, any Service Provider Materials solely to the extent necessary to access or use the SaaS Services in accordance with the terms and conditions of this Agreement.
5.2 Authorisation Limitations & Restrictions
Client will not and will not knowingly permit any other Person to access or use the Services or Service Provider Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
5.2.1 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Services or Service Provider Materials available to any third party that is not an Authorised User;
5.2.2 reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Service Provider Materials, in whole or in part;
5.2.3 bypass or breach any security device or protection used by the Services or Service Provider Materials or access or use the Services or Service Provider Materials other than by an Authorised User through the use of his or her own then valid Access Credentials;
5.2.4 copy, modify or create derivative works or improvements of the Services or Service Provider Materials;
5.2.5 use or authorise the use of the Services or Documentation in any manner or for any purpose that is unlawful under applicable Law;
5.2.6 remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Service Provider Materials, including any copy thereof;
5.2.7 access or use the Services or Service Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
5.2.8 access or use the Services or Service Provider Materials for purposes of competitive analysis of the Services or Service Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Service Provider’s detriment or commercial disadvantage; or
5.2.9 otherwise access or use the Services or Service Provider Materials beyond the scope of the authorisation provided in this Agreement.
6 Term & Termination
This Agreement will begin on the Effective Date and will remain in full force and effect unless terminated by either party for cause, as described in Section 8.4, “Termination for Cause,” in which case this Agreement and all Services will also be terminated. Except in the case of termination for breach by Service Provider, within thirty (30) days of the date of termination, Client must pay all amounts remaining unpaid for SaaS Services provided prior to the effective date of termination, plus related taxes and expenses.
6.2 Term of Service
The Service will remain in effect until the earlier to occur of: a) termination of such Service by either party for cause as described in Section 8.4 below; b) termination of such Service upon mutual written consent of the Parties.
This Agreement shall run continuously unless a party provides the other party with written notice of its intent not to renew this Agreement with at least a thirty (30) days notification of intention not to proceed.
6.4 Termination for Cause
A party may terminate this Agreement if:
6.4.1 the other party is in default of a material obligation under this Agreement, and such default has not been cured within thirty (30) calendar days after receipt of written notice (specifying the default) from the non-defaulting party. If the default specified in such notice is cured within the thirty (30) day period, the Agreement will remain in effect; or
6.4.2 the non-terminating party enters into liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or part of its assets or enters into an arrangement with its creditors or takes or suffers any similar action.
The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance thereof by either party hereunder will so survive the completion of the performance, cancellation or termination of this Agreement, including without limitation, Confidentiality, Infringement and Limited Warranties.
7 Fees & Expenses
Client agrees to pay for all services provided as agreed between both parties in writing. All Fees are due five (5) days from the date of invoice. Any Fees not paid within five (5) days after the date on which Client receive an invoice (the “Due Date”) will accrue interest on the overdue balance from the Due Date at the rate of one and one-half percent (1.5%) per month, or the maximum lawful rate allowable under applicable law, whichever is lower.
7.2 Fee Change
The Service Provider may change the fees for the Services to adjust for expansion of services; increasing costs of third-party systems and inflation. The Service Provider shall notify Client of any proposed changes with both parties agreeing in writing to the proposed changes. The Client shall not refuse any reasonable request for a change in fee based on market conditions.
Client is exclusively responsible for the collection and remittance of all sales and use, value added, duties, tariffs or other similar charges or taxes on the SaaS Services, other than taxes based upon Service Provider’s income. All fees are exclusive of taxes.
Service Provider will invoice Client at the start of Initial Term and on the first (1st) day of every month. All Invoices shall be issued in electronic format, via such delivery means and to such address as are specified by Client in writing from time to time. Each separate invoice will: (a) clearly identify the service to which it relates; (b) include sufficient detail for each line item to enable Client to verify the calculation thereof; If Client validly disputes any invoiced amount it shall pay the undisputed amounts and provide written notice of the basis of that dispute to Service Provider within five (5) days following delivery of that invoice. The parties will work diligently, promptly and in good faith to resolve any such disputes.
8 Ownership & Restrictions
8.1 Ownership of Client Data
As between Client and Service Provider and its Subcontractors, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data and Assets, including all Intellectual Property Rights relating thereto, subject only to the limited license granted in Section 10.2.
8.2 Limited License to Use Client Data
During the Term of this Agreement and subject to the terms and conditions of this Agreement, Client hereby grants Service Provider a limited, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable license to process the Customer Data as instructed by Client or an Authorised User and solely as necessary to provide the SaaS Services for Client’s benefit as provided in this Agreement.
8.3 Reservation of Rights
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Service Provider Materials and Documentation or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Service Provider Materials and the Third-Party Materials are and will remain with Service Provider and the respective rights holders in any such materials.
9.1 Confidential Information
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) non-public, proprietary, confidential information about its business affairs, products, services, confidential intellectual property, trade secrets, third party confidential information, source code and other sensitive or proprietary information in oral, written, electronic or other intangible form marked or indicated as “Confidential” or “Proprietary” at the time of disclosure (collectively, “Confidential Information”). Confidential Information, however, shall not include: (a) Information which is already generally available to the public; (b) Information which hereafter becomes generally available to the public, except as a result of the direct or indirect action of the Receiving Party in breach of this Agreement; (c) Information known to the Receiving Party or its Representatives on a non-confidential basis prior to receipt by the disclosing party; (d) Information that is independently developed without access to the Disclosing Party’s Confidential Information; and (e) Information disclosed under legal compulsion; provided, however, that prior to a disclosure pursuant to an order or applicable law, the Receiving Party, to the extent permitted by law, promptly provides the other party written notice of such proposed disclosure and reasonably cooperates with the other party in its attempts to limit or prevent such disclosure. The Receiving Party shall use the Confidential Information solely for the performance of this Agreement and shall not disclose or permit access to Confidential Information other than to its Affiliates and its or their employees, officers, directors, attorneys, accountants and financial advisors (including insurers) (collectively, “Representatives”) who: (a) need to know such Confidential Information for the performance of this Agreement; (b) know of the existence and terms of this Agreement and (c) are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained herein. These non-disclosure obligations shall survive the termination of this Agreement and shall continue for a period of five (5) years thereafter. Information need not be marked “Confidential” to be considered Confidential Information. Customer Confidential Information shall also be deemed to include Customer Data regardless of marking or indication and shall not be subject to the exceptions referenced above.
9.2 Safeguarding Confidential Information
The Receiving Party shall safeguard the Confidential Information from unauthorised use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and no less than a reasonable degree of care. The Receiving Party shall promptly notify Disclosing Party of any unauthorised use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further use or disclosure. The Receiving Party will be responsible for any breach of this Agreement caused by its Representatives.
9.3 No Rights in Confidential Information
Client and Service Provider hereby acknowledge and agree that all Confidential Information of the other party shall remain the sole and exclusive property of such other party and that the receiving party shall have no proprietary rights, title or interests therein except as otherwise provided in this Agreement.
Upon termination for any reason, or at any other time that Client or Service Provider demands, the other party shall promptly deliver and/or certify destruction of Confidential Information, as appropriate, to the requesting party all Confidential Information (copies and originals) of the requesting party as may be in the other party’s possession or under its control.
9.5 Data Privacy & Security
9.5.1 Undertaking by Service Provider
Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider will use commercially reasonable efforts to establish and maintain a data privacy and information security program, including physical, technical, administrative, and organisational safeguards, that is designed to: (a) ensure the security and confidentiality of the Client’s Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Client Data; (c) protect against unauthorised disclosure, access to, or use of the Customer Data; (d) ensure the proper disposal of Client Data; and, (e) ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing.
9.5.2 Unauthorised Access
Service Provider will use commercially reasonable efforts to prohibit access to Client’s Systems, in whole or in part, whether through Service Provider’s Systems or otherwise.
9.5.3 Service Provider Systems
Service Provider will be responsible for the security, management and maintenance of information technology infrastructure, including all computers, software, databases, electronic systems (including database management systems) and networks used by or for Service Provider to access the Client’s Systems or otherwise in connection with the SaaS Services (“Service Provider Systems”).
10.1 Service Provider’s Indemnification Obligations
Service Provider will indemnify and defend Client and its Affiliates and their respective officers, directors, employees, shareholders and members from and against any losses, claims, penalties, fines, judgments, damages, liabilities or expenses, including reasonable attorneys’ fee (“Losses”), or threatened Losses arising out of third party claims relating to, incurred in connection with, or based upon any claim, threatened claim, suit, action or proceeding (“Claim”) made against Client:
10.1.1 that that the Services infringe any Intellectual Property Rights of a third party enforceable in the State of Victoria, Australia (“Infringement Claim”); or
10.1.2 any claim for bodily injury or death of any individual, or the loss, damage or destruction of any real or personal property, resulting from the willful, negligent, reckless, fraudulent or intentional acts or omissions of Service Provider or its Sub-contractor.
10.2 Indemnification Limitations
Service Provider will have no liability or obligation for any Losses to the extent that such Loss arises out of or results from any:
10.2.1 claims arising against the Terms of the EULA;
10.2.2 alteration or modification of the SaaS Services by or on behalf of Client or any Authorised User without Service Provider’s authorisation (each, a “Client Modification”), provided that no infringement, misappropriation or other violation of third party rights would have occurred without such Client Modification and provided further that any alteration or modification made by or for Service Provider at Client’s request will not be excluded from Service Provider’s indemnification obligations hereunder unless (i) such alteration or modification has been made pursuant to Client’s written specifications and (ii) the SaaS Services, as altered or modified in accordance with the Client’s Requirements Specifications, would not have violated such third party rights but for the manner in which the alteration or modification was implemented by or for Service Provider;
10.2.3 Client’s access to or use of the SaaS Services that is expressly prohibited by this Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement; or
10.2.4 breach of this Agreement by Client or noncompliance herewith by any Authorised User.
10.3 Client’s Indemnification Obligations
Client will indemnify and defend Service Provider, its Subcontractors, Affiliates and such person’s respective officers, directors, employees, shareholder and members from and against Losses arising out of a Claim made against Service Provider relating to, incurred in connection with, or based upon:
10.3.1 Client’s use of the SaaS Services in breach of this Agreement; or
10.3.2 any Infringement Claim asserted by any third party based upon Client materials provided to Service Provider; or
10.3.3 any claim for bodily injury or death of any individual, or the loss, damage or destruction of any real or personal property, resulting from the willful, negligent, reckless, fraudulent or intentional acts or omissions of Client.
10.4 Indemnification Procedures
The party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (“Indemnifying Party”) in writing of any Claims for which it seeks indemnification pursuant to this Section 9 and reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party will immediately take control of the defense and investigation of such Claim and will employ counsel reasonably acceptable to the other party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party will not settle any Claim on any terms or in any manner that adversely affects the rights of the other party or any Indemnitee without the other party’s prior written consent, which will not be unreasonably withheld or delayed. The other party and any Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. A party’s failure to perform any obligations under this Section 9.d will not relieve the Indemnifying Party of its obligations herein except to the extent that the Indemnifying Party can demonstrate that it has been prejudiced as a result of such failure.
In addition to the foregoing indemnification obligations, if all or any part of the SaaS Services is subject to an Infringement Claim, Service Provider may, at its discretion and expense, take the following actions:
10.5.1 Procure for Client the right to continue using the SaaS Services; or
10.5.2 Modify or replace the allegedly infringing aspect of the SaaS Services to make it non-infringing, provided, however, that such modification or replacement will not degrade the operation or performance of the SaaS Services.
10.5.3 If neither of the remedies set forth in this Section 12.5 is reasonably available with respect to the Infringement Claim features then Service Provider may direct Client to cease any use of any materials that have been enjoined or finally adjudicated as infringing, provided that Service Provider will refund to Client any prepaid Fees for SaaS Services that have not been provided.
10.5.4 Excluding the indemnity obligation owed by Service Provider to Client, the remedies set forth in this Section 12.5 are Client’s exclusive remedies with respect to any Infringement Claim.
11 Limitation of Liability
11.1 Exclusion of Indirect Damages
To the fullest extent permitted by law, in no event will either party be liable for the following types of loss: loss of profits or revenue; loss of business or goodwill, or business interruption, or any indirect, special, or consequential damages arising out of this agreement, or the performance or breach thereof, whether based in contract, tort or any other theory, even if a party has been advised of the possibilities of such claim.
11.2 Cap On Direct Damages
Each party’s aggregate liability to the other party arising under or in relation to this agreement (other than client’s obligation to pay fees) will be limited to the lesser of actual direct damages or the actual fees paid by client to service provider under the affected service during the twelve (12) month period prior to any incident under which or in relation to which the liability arises.
11.3 Cap On User damages
To the fullest extent permitted by law, the terms of limitations extended to a user is defined and governed in the EULA.
The exclusions and limitations set forth in sections 13.1, 13.2 and 13.3 will not apply to losses arising out of or relating to (a) a party’s gross negligence or more culpable conduct, including any willful misconduct or intentional wrongful acts (b) a party’s indemnification obligations, (c) breach of confidentiality obligations, (d) personal injury or death or damage to any real or tangible personal property caused by either party’s negligent acts or omissions or willful misconduct or (e) under or any other liability which may not be excluded by law.
12 Representations & Limited Warranty
12.1 Mutual Representation and Warranties
Each party represents and warrants to the other party that:
12.1.1 it is duly organised, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organisation or chartering;
12.1.2 it has, and throughout the Term during which it does or is required to perform the SaaS Services will retain, the full right, power and authority to enter into this Agreement and perform its obligations hereunder;
12.1.3 the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorised by all necessary corporate/ action of the party; and
12.1.4 when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with the Agreement terms, except as the enforceability thereof may be limited by bankruptcy and similar Laws affecting creditors’ rights generally and by general equitable principles.
12.2 Additional Service Provider Warranties
Service Provider represents, warrants and covenants to Client that:
12.2.1 it is in the business of providing the SaaS Services;
12.2.2 it is the lawful licensee or owner of the SaaS Services (excluding any Client Data therein) and has all the necessary rights in the SaaS Services to grant the use of the SaaS Services to Client;
12.2.3 the Service Software and Services will in all material respects conform to and perform in accordance with the Documentation and all requirements of this Agreement;
12.2.4 it will use its best efforts to ensure that no Disabling Code is introduced into Client’s computing and network environment by the SaaS Services; and
12.2.5 it will perform all Services in a timely, professional, and workmanlike manner with a level of care, skill, practice and judgment consistent with generally recognised industry standards and practices for similar services, using personnel with the requisite skill, experience and qualifications, and will devote adequate resources to meet Service Provider’s obligations under this Agreement.
12.3 Additional Client Warranties
Client represents, warrants and covenants to Service Provider that:
12.3.1 Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Service Provider and Processed in accordance with this Agreement, Client does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law;
12.3.2 prior to Client’s delivery to Service Provider of any Client Data that is outside of the Service Providers Systems, Client shall use current industry state-of-the-art anti-virus measures to detect, prevent and remove Disabling Code, and to prevent the spread of Disabling Code between the Parties when accessing and/or exchanging data or software through the Interfaces or any other network connectivity;
12.4 Disclaimer of Warranties
Except for the express warranties set forth in section 14.1, section 14.2 and section 14.3, all services and service provider materials are provided “as is” and service provider hereby disclaims all warranties, whether express, implied, statutory, or other, and provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between customer and the third-party owner or distributor of the third-party materials.
13 Force Majeure
Neither party will be liable in damages or have the right to terminate this Agreement for any reasonable delay or default in performing under this Agreement if such delay or default is caused by conditions beyond the party’s reasonable control, including without limitation acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations or failures or fluctuations in electrical power, heat, lights, air conditioning or telecommunications equipment (each of the foregoing, a “Force Majeure Event”), provided that the non-performing party is without fault in causing such condition. Subject to the party so delaying promptly notifying the other party in writing of the reason for the delay and the likely duration of the delay, the performance of the delaying party’s obligations, to the extent affected by the delay, will be temporarily suspended during the reasonable period of time that the cause persists, provided that if performance is not resumed within thirty (30) days after that notice, the non-delaying party may by notice in writing immediately terminate this Agreement.
14 General Conditions
14.1 Compliance with Laws
The Parties will comply with all applicable Laws, regulations and codes, including procurement of permits and licenses, when needed, of their respective states, territories, and/or countries in the performance of this Agreement. Client will (a) comply strictly with all legal requirements; (b) cooperate fully with Service Provider in any audit or inspection that relates to applicable legal requirements; and (c) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or person who or which is embargoed by an Executive Order or any applicable law, including any rules, regulations or policies promulgated thereunder.
14.2 Further Assurances
Each party will, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
14.3 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
All notices, requests, consents, claims, demands, waivers and other communications hereunder, other than routine communications having no legal effect, will be in writing and addressed to designated authorised staff or representatives as identified by each party.
The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.
Neither party will assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other party’s prior written consent, which consent will not unreasonably be withheld or delayed. Any purported assignment, delegation or transfer in violation of this Section 16.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; [and] (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and all personal pronouns, whether used in the feminine, masculine, or neuter gender, include all other genders and the singular will include the plural and vice versa. Unless the context otherwise requires, references herein: (x) to Sections, Schedules and Exhibits refer to the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument or other document (including this Agreement) means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof, and together with all schedules and exhibits thereto; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Schedules and Exhibits referred to herein will be construed with, and as an integral part of, this Agreement to the same extent as if such Schedules and Exhibits were set forth verbatim herein.
14.8 Entire Agreement
This Agreement, including all Service Orders and other Schedules and Exhibits and any other documents, agreements or instruments incorporated by reference herein, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, and all subsequent oral understandings and agreements with respect to such subject matter. In the event of any conflict between the terms of this Agreement and those of any Schedule, Exhibit or other document, the following order of precedence will govern: (a) first, this Agreement, excluding its Exhibits and Schedules; (b) second, the Exhibits and Schedules to this Agreement as of the Effective Date; and (c) third, any other documents, instruments or agreements incorporated herein by reference. This Agreement and all Service Orders take precedence over any purchase order issued by Client, which may be accepted by Service Provider for administrative convenience only.
14.9 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14.10 Amendment & Modification
Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege
If any term or provision of this Agreement is invalid, illegal or unenforceable according to Law, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible
14.12 Governing Law; Submission to Jurisdiction
14.12.1 This Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of State of Victoria, Australia.
14.12.2 Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts of the State of Victoria, Australia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
14.13 Waiver of Jury Trial
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14.14 Equitable Relief
The Parties will be entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek equitable relief in a court of competent jurisdiction.
14.15 Attorney’s Fees
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees and out-of-pocket and court costs from the non-prevailing party.
14.16 Limitations on Actions
No actions, regardless of form, arising from the transactions under this Agreement, may be brought by either party more than two (2) years after the cause of action has accrued.
This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement and will become effective and binding upon the parties as of the Effective Date at such time as all the signatories hereto have signed a counterpart of this Agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.