December 6, 2022
Larissa Varela

Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE OF OUR SERVICES AND/OR PRODUCTS FROM PIA TRADE CO PTY LTD (ABN 77 654 480 501), A COMPANY BASED IN AUSTRALIA. IF YOUR SUBSCRIPTION IS OR INCLUDES A FREE TRIAL, THIS AGREEMENT ALSO GOVERNS YOUR FREE TRIAL OF THE SERVICES AND/OR PRODUCTS.

BY ACCEPTING THIS AGREEMENT BY SIGNING AND EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY OR THE SUBCRIBER OF OUR PRODUCTS AND SERVICES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

BY ACCEPTING THIS AGREEMENT YOU ALSO ACKNOWLEDGE THAT THESE TERMS AND CONDITIONS MAY CHANGE FROM TIME TO TIME.  IF IT DOES CHANGE YOU WILL BE PROMPTED TO CONFIRM YOUR AGREEMENT TO THE SAME.

BASIC TERMS

  1. You acknowledge that the Services and Products incorporate our sensitive trade secrets and other knowledge that is commercially valuable. Accordingly, You agree that You must not enter into this Agreement, or access the Services and Products, if You or Your business is in any way involved in developing, implementing or delivering any products or services that are similar to or competitive with our Services and Products.
  2. Each party acknowledges that the Confidential Information provided by the other party is provided on a confidential basis and may contain sensitive commercial information and/or trade secrets and other knowledge that is commercially valuable. The rights and obligations of each party with respect to the other party’s Confidential Information are set out at clause 15.
  3. You must not access the Services and Products for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, public disclosure or competitive purposes.
  4. This Agreement supersedes any prior agreement, arrangement or understanding between You and Us in relation to its subject matter.
  5. We provide Services and Products to customers and businesses in North America, Australia, New Zealand, the United Kingdom and the rest of the world. You acknowledge that features, functions, units of measurement and terminology may differ between countries, and features and/or functionality designed for one geographical territory or country may not suit or be available for use in or in respect of other countries.

This Agreement was last updated on 22 May 2024. It is effective between You and Us as of the date of Your acceptance of this Agreement.

1. DEFINITIONS

In this Agreement unless the context otherwise requires:
  1. “Automation Package” means a process automation definition file that can be executed by the Pia Platform. Packages available for execution can be found in the ‘Partner Portal’ under ‘Automation -> Package Editor’. Packages can be triggered in the following ways:
    1. Interactively via the chat interface in the PSA.
    2. Interactively via SmartForms.
    3.  
    4. Automatically by the Pia platform in response to conditions within the PSA.
  2. “Automation Package Execution” means the process whereby the Pia Platform performs some or all the actions in a published ‘Package’ as defined in the ‘Automation Package’ definition file.
  3. “Endpoint” means any desktop or server, whether physical or virtual, or other devices which the Product is deployed on.
  4. “Extension Automation Executions” means Automation Package Execution’s triggered through Extension Points in OOB Packages.
  5. “Extension Points” means Some OOB Packages provide injection points enabling subordinate Automation Packages to be executed from within a parent Automation Package.
  6. “Fees” means the fees set out in the Order Form, including Endpoint Subscription Fees; and/or the Platform Fee and Usage Fees, in accordance with clause 4.2 and are payable in accordance with clause 6.
  7. “Force Majeure Event” means an event or cause beyond that party’s reasonable control including industrial action, war, terrorist activity, national emergency, pandemic, epidemic, blockade or government action or inaction, or an act of God, accident, failure of communications or energy sources, breakdown of plant and equipment, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.
  8. “Function Package” means OOB Packages that are subordinate components of other OOB Packages
  9. “Indirect Loss” means any one or more of the following:
    1. economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and
    2. any special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.
  10. “Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us. Order Forms shall be deemed incorporated herein by reference.
  11. “Out-of-the-Box (“OBB”) Packages (“OBB Packages”)” means Pia provided and supported Automated Packages”.
  12. Partner Portal” means a web-based portal provided to partners to enable administration and management of the Pia platform.
  13. “Personal Data” means any information relating to an identified or identifiable natural person, and includes ‘personal information’ as defined in the Privacy Act 1988 (Cth).
  14. “Privacy Law” means any law to which a party is subject to, in Australia or otherwise, which relate to the collection, use, disclosure, storage or granting of access rights to the Personal Information, including the Privacy Act 1988 (Cth).
  15. “Platform” means the infrastructure through which the Products and Services are delivered or made available to You.
  16. “Product” means the functionality that is made available to You by Us, as purchased by You under an Order Form. Unless otherwise stated in the Order Form, the Product shall be as generally described in the Product Specification. More limited functionality may be provided to You pursuant to a free trial.
  17. “Product Specification” means, in respect of each Product, the description of that Product as set out in the document titled “Product Specification” and will be available at https://pia.ai
  18. “PSA” means a professional services automation system used by the managed service provider to manage the process of IT service automation.
  19. “Services” means the services to be provided by Us as set out in clause 3.
  20. “Support Services” means the support services provided in accordance with clause 14.
  21. “Term” means the period of the subscription specified for each Product in an Order Form.
  22. “Triage Execution” means any instance where the OOB Triage function performs one or both of the following actions according to the Triage policy configuration:
    1. updates the properties of a PSA ticket; and/or
    2. triggers the execution of Automation Packages.
  23. “Usage means” the period between 12:00am of the 1st calendar day of the month and 11:59pm on the last calendar day of the month UTC time.
  24. “User” means a specific individual authorised by You to access and use the Products in accordance with the terms of this Agreement.
  25. “We”, “Us”, or “Pia” means PIA Trade Co Pty Limited ABN 77 654 480 501.
  26. “You” or “Your” means the company or other legal entity that is entering into this Agreement with Us.
  27. “Your Data” means all electronic data or information submitted by You to Us through the Platform.

2. ORDER FORM

  1. Pursuant to the terms of the Agreement, We will provide You with the Products or Services as specified in one or more Order Forms from time to time.
  2. To the extent that any conflict arises between the Agreement and the Order Form, the terms of the Order Form shall prevail.
  3. Where You attach any additional terms; include any additional terms in response to information requested or in a Order Form (including where incorporated by reference); or include additional terms in any other materials or documents, those additional terms will have no legal effect unless expressly agreed to be incorporated by Us in writing.

3. SERVICES

The Services to be provided by Us includes:

  1. the right to access and use the Products; and
  2. the Support Services..

4. PRODUCT LICENSING

4.1 Provision of Product Licenses

  1. We shall make the Products, as detailed in the relevant Order Forms, available to You pursuant to the terms of this Agreement for the duration of the applicable Term.
  2. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

4.2 Subscriptions

  1. Unless otherwise specified in the applicable Order Form,  Products are purchased as a subscription for an agreed Term based on either:
    1. The number of Endpoints (“Endpoint Subscription Fee”); or
    2. Access to the Platform (“Platform Fee”), plus the number of Automation Package Executions and Triage Executions during a Usage Period (“Usage Fee”).
  2. With respect to the Endpoint Subscription Fee:
    1. Your fee will be assessed by no more than the number of individual Endpoints specified in Your Order Form,
    2. Additional Endpoint subscriptions may be added during the applicable Term at the same per-Endpoint pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Term in effect at the time the additional Endpoint subscriptions are added, and
    3. The added Endpoint subscriptions shall terminate on the same date as the pre-existing subscriptions. Endpoint subscriptions are for designated Endpoints only and cannot be shared or used by more than one User but may be reassigned to new Endpoints replacing former Endpoints who no longer require ongoing use of the Products.
  3. With respect to the Platform Fee plus Usage Fee:
    1. Your Platform fee will be based on the agreed monthly rate in your Order Form for the relevant Term, and
    2. In addition, You will be charged a Usage fee calculated based on the Automation Package Executions and Triage Executions during a Usage Period, at the prevailing rates outlined in Your Order Form for the relevant Term.
  4. You acknowledge and agree that Your purchase of Services and the Products under this Agreement do not transfer to You, or create for Your benefit, ownership of any intellectual property rights or trade secrets in any of Our Services and Products (including any improvements or updates to the same). Any rights granted to You under this Agreement in respect of our Services and Products shall be construed to be a non-transferable, non-sublicensable, non-exclusive, revocable licence to access or use the relevant Services and Products only for the Term:
    1. In and from the territories specified in the applicable Order Form; and
    2. for the purposes specifically authorised in this Agreement.

4.3 Use of Materials

Any information or materials that are made available to you (“Materials”) by Us is the copyrighted work of Us and/or its licensors (if any). Your right to download and/or use the Materials will be subject to this Agreement. Any use, reproduction or redistribution of the Materials not in accordance with this Agreement is prohibited.

The origins of such Materials may be internal or external to Us. All Materials provided on Our websites or otherwise, including any material from third parties, is “as is,” and We make no express or implied claims, representations or warranties as to its accuracy, validity or veracity. We shall not be liable, in any way, for your use of these Materials, any results that may occur from such use, or any consequences from decisions made in reliance on these Materials. We make no claims, representations or warranties that the Materials will operate properly, securely, effectively or efficiently. We disclaim all liability concerning the download of Materials, including, but not limited to damage to the user’s hardware, software, network or systems, loss of data, application failure, backup errors or problems related to connectivity, security, compatibility, functionality or efficiency.

4.4 Additional features and functionality

Any additional features or functionality (not included in Our standard Products) such as custom fields, custom objects or components which are not part of the Products or regular system upgrades, will only be provided if:

  1. agreed in an Order Form;
  2. paid for by You.

4.5 Additional Services

We may provide any additional services requested by You in accordance with a separate agreement and Order Form for an additional fee.

4.6 Acceptable and fair use

  1. You must not use Our Products and Services in any way that We, in Our absolute discretion, deem to be unreasonable including but not limited to, for example where:
    1. You use Our Products and Services in any manner designed to avoid paying any fees and charges (or any additional fees) under this Agreement or any other agreement between Us and You;
    2. Your use of Our Products and Services is considered by Us to be fraudulent or which adversely affects the operation and/or purpose of Our Products and Services; or
    3. You use Our Products and Services other than strictly in the manner for which it was designed.
  2. If You breaches paragraph (a) above then:
    1. You acknowledge and agree that it may cause errors with respect to the use of Our Products and Services and will void any express or implied warranties provided by Us under this Agreement; and

    2. We, at Our option, may suspend the use of Our Products and Services by You; terminate this Agreement and/or any other agreement between You and Us; and/or demand that You pay all fees and charges which You would have been liable to pay had You not used Our Products and Services in a manner which was unreasonable, fraudulent or designed to circumvent or reduce the amounts payable by You under this Agreement.

5. ACCESS

  1. Shortly after signing the Order Form, You must give us access to your Azure Tenant ID and the UPN of Pia Admin account created to enable us to set up an instance of the Product within your IT environment.  We will provide you with a URL to enable you to access the Product as an administrator of the Product. You will then be able to invite other Users to access and use that Product. You must:
    1. ensure that You and the Users keep their usernames and passwords confidential and do not disclose the usernames and passwords to any other person;
    2. ensure that You can identify and manage each person entrusted with the username and password combination for its account; and
    3. immediately notify the Us of any unauthorised use of its password or account or any other breach of security.
  2. You are responsible for all activities that occur on the Product within your IT environment.

6. FEES AND PAYMENTS

6.1    Fees

  1. In consideration of the Services and making the Products available to You, You must pay the Fees to Us. Fees are based on Product purchases and are non-cancellable and non-refundable to the extent permitted by law.
  2. The Billing Start Date of Your Fees for Our Services and Products will be as stated in the applicable Order Form and will represent the start of the license billing period.
  3. The number of Endpoint subscriptions purchased or the Platform Fee cannot be decreased during the relevant Term.
  4. Endpoint Subscription Fees are charged monthly, based on monthly periods that begin on the signed date of the Order Form and each monthly anniversary thereof.  Endpoint subscriptions added in the middle of a billing cycle will be charged for that full monthly period, not on a pro-rata basis, and will continue to be an addition for Your Fees for the remaining Term of Your subscription. Billing will be initiated from the beginning of Your Billing Start Date for all  Endpoint subscriptions specified in Your Order Form, irrespective of when each User actually uses the Products.
  5. To the extent that You have chosen the Platform Fee option you will also be charged a Usage Fee. The Platform Fee will be charged monthly in advance from your Billing Start Date, whilst the Usage Fee will be charged monthly in arrears for the Usage Period that includes the Billing Start Date which may be calculated on a pro-rata basis for the first and last month of Your Term, at Our sole discretion.
  6. We reserve the right to change the timing of Your billing cycle as we see fit as long as there is no duplication of the overall Fees paid by You over the Term, with the timing in which we resolve of the impact of any duplication being at Our sole discretion as long as it is resolved by the end of the Term. 
  7. Your obligation to pay the Fees for Products purchased is not in any way contingent upon the progress or completion of any related or unrelated Services that We are performing for You.

6.2  Invoicing and Payment

The Fees must be paid by credit card or direct debit unless the Order Form specifies that payment will be by a method other than credit card or direct debit. If You provide credit card information or your nominated bank account details to Us, You authorize Us to charge such credit card or make deductions from your bank account for all Products purchased pursuant to any Order Form for the duration of the Term. Billing periods will be stipulated on the Order Form. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. You must ensure that You have sufficient clear funds available in your nominated bank account (if You are paying by direct debit from Your bank account) or have sufficient credit available on your nominated credit card (if You are paying by credit card) on the due date to permit the payment of the Fees. If the Order Form specifies that payment will be by a method other than a credit card or direct debit, We will invoice You in advance and otherwise in accordance with the relevant Order Form and unless otherwise stated in the Order Form, invoiced charges must be paid within 1 day from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

6.3 Overdue Fees

If any Fees are not received by Us from You by the due date, then at Our discretion: (a) such Fees will accrue late-payment interest at the rate of 1%p.a. of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in clause 6.2 (Invoicing and Payment).

6.4 Suspension of Service and Acceleration

If any amount owing to Us by You under this Agreement or any other agreement is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card) or you are otherwise in breach of this Agreement, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such future payment obligations become immediately due and payable, and/or suspend Your usage of Our Services and Products until such amounts are paid in full. We will give You at least 7days’ prior notice that Your account is overdue before suspending Your access to Our Services and Products.

6.5 Formal Collection of Payment

You hereby acknowledge that We hold the right to pursue payment collection through formal debt collection third parties (or assign our collection rights under this Agreement to any third party, by notice in writing to You) if any amount owing by You under this Agreement or any other agreement for Our Services and Products is 30 or more days overdue and no effort to resolve a payment dispute has been made (or efforts have been made, but full payment has still not been received by Us within 14 days of the commencement of those dispute resolution efforts). All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including; third-party collection fees, and interest charges identified in clause 6.3 (Overdue Charges).

6.6 Taxes

Unless otherwise stated, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to goods and services tax, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. YOUR DATA

7.1   Your Data

You exclusively own all rights, title and interest in and to all of Your Data.

7.2    Your data

We will use our best endeavors to protect Your Data. You acknowledge that We shall not be responsible for the privacy, security or integrity of Your Data.

7.3    Data Retention

We will only retain sufficient data processed by Us in order to continue provision of our Services and Products to you in connection with the Services and Products. Your Data is stored in a database instance which is dedicated to you. However, at any stage at our sole discretion we may decide it suitable to dispense with a database solely dedicated to You.

7.4    Access to Your Data

For a period of 30 days after the effective date of termination or expiration of the relevant Term, You will have access to the Product for the purposes of allowing You to access or download Your Data, to the extent we have retained it.  After such 30-day period, We shall have no obligation to maintain or provide any such data and may thereafter, unless legally prohibited, delete all such data in Our systems or otherwise in Our possession or under Our control.

8. PROPRIETARY RIGHTS

8.1 Reservation of Rights

Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services and Products, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

8.2 Restrictions You shall not:

  1. permit any third party to access the Services and Products except as permitted herein or in an Order Form;
  2. create derivative works based on the Services and Products;
  3. copy, frame or mirror any part or content of the Services and Products, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes;
  4. reverse engineer, reverse assemble, reverse compile, copy, duplicate, modify or re-sell all or part of the Products,
  5. use the Services and Products in a manner or for a purpose which is improper, immoral or fraudulent, which restricts or interferes with Our provision of the Products to any other customer;
  6. enter into any transaction relating to:
      1. access or use of the Products;
      2. any of our intellectual property rights in the Products, with anyone other than Us,

      with anyone other than Us, without Our written consent;

  7. gain, or attempt to gain, unauthorised access to the Products or Platform computer systems or networks connected to the Products or Platform, including through hacking, password mining or any other means; or
  8. disclose, publish, transmit or otherwise make publicly available any benchmark, performance or comparison tests that You (or a third-party contracted by You) undertakes in connection with Our Products and Services;
  9. other than where expressly agreed with Us in writing, claim any sponsorship, affiliation or endorsement by Us;
  10. act in a manner that is abusive to an employee, contractor or other agent of Ours;
  11. access the Services and Products in order to:
      1. build a competitive product or service, or
      2. copy any features, functions or graphics of any part of the Services and Products.

8.3 Suggestions

You assign to Us all right, title and interest (including intellectual property rights) in any suggestions, improvements, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services and Products, as an when those rights are created. You agree to sign all documents and do everything required by Us for the purpose of perfecting the vesting of those rights (including intellectual property rights).

9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

9.1 Representations and Acknowledgements

  1. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
  2. We warrant that the Services and Products will function substantially in accordance with the Product Specification (as updated by Us from time to time) for the relevant Term, provided You comply with Our instructions relating to Your use of, and access to, the Services and Products. You agree that Our sole obligation for breach of this warranty, notified by You to Us, is to use reasonable endeavours to attempt to modify the relevant Services and Products so that it will, in the future, function substantially in accordance with the Product Specification.
  3. You acknowledge and agree that We do not warrant that Your access to or use of the Services and Products will be uninterrupted or error free. Among other things, the operation and availability of the systems used for hosting and accessing the Services and Products, including electricity supplies, public telephone services, computer networks and Internet, and third-party provided hardware and software, can be unpredictable and may from time to time interfere with or prevent access to or operation of the Services and Products. Likewise, the various platform services that support the delivery of Services and Products may be unavailable from time to time or execute service delivery in a manner or timeframe that is not as anticipated, or adequate for Your business purposes.
  4. You acknowledge that We will not be deemed responsible for any interruptions to the access and use of our Services and Products that occur as a direct or indirect result of interruptions to those platforms services that our Services and Products are integrated with.
  5. You acknowledge that it is Your responsibility to ensure that:
    1. You verify the accuracy of all information that You access or use through the Services and Products; and
    2. You do not make unintended or misleading changes to any data accessed or used by or through the Services and Products.

9.2 Disclaimers

Content, beta and free trial products and services are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third- party hosting providers.

10. MUTUAL INDEMNIFICATION

10.1 Indemnification by Us

  1. We shall indemnify You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that Your use of the Services and Products as expressly permitted hereunder infringes or misappropriates the copyright, trade secret or registered trademark rights of the plaintiff (a “Claim Against You”), provided that You: (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defence and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability or has otherwise been agreed to by You in writing); (c) provide to Us all reasonable assistance that We request, at Our expense; and (d) Your personnel do not make any admissions that could impair our ability to defend or settle the Claim Against You.
  2. In the event of a Claim Against You, or if We reasonably believe the Services and Products may infringe or misappropriate, We may in Our discretion and at no cost to You: (i) modify the Services and Products so that it no longer infringes or misappropriates; (ii) obtain a license for Your continued use of the Services and Products substantially in accordance with this Agreement; or (iii) terminate Your User subscriptions for such Services and Products upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such Endpoint subscriptions after the effective date of termination.’
  3. You agree that Our entire liability to You in respect of any Claim Against You shall be as set out in paragraphs (a) and (b).

10.2 Indemnification by You

You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services or Products in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We:

  1. promptly give You written notice of the Claim Against Us; and
  2. provide to You all reasonable assistance that You request, at Your expense.

11. LIMITATION AND EXCLUSION OF LIABILITY

11.1 Limitation of Liability

  1. Nothing in this Agreement is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.
  2. We exclude to the extent permitted by law all other guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, which would otherwise be implied into these terms of use concerning the activities covered by this Agreement.
  3. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to this Agreement and we are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election):
    1. in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and
    2. in the case of services, the supplying of the services again (or the payment of the cost of doing so).
  4. Subject to Our obligations under the Non-Excludable Provisions. neither party’s liability with respect to any single incident arising out of or related to this Agreement will exceed the amount paid by customer hereunder in the 12 months preceding the incident. Further, in no event will either party’s aggregate liability arising out of or related to this Agreement exceed the total amount paid by You hereunder. The above limitations will apply whether an action is for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise. However, the above limitations are in addition to and will not limit Your payment obligations under clause 6 (fees and payment).
  5. Notwithstanding the foregoing, to the fullest extent permitted by law, the liability arising out of or related to Our obligations under clause 1011.1 of this Agreement will not exceed the lower of our Fees for the Term of Your Agreement or USD $1,000,000.

11.2 Exclusion of consequential and related damages

Subject to Our obligations under the Non-Excludable Provisions, We are not liable to You or any third party for any Indirect Loss arising in connection with this Agreement or its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee, under an indemnity or otherwise and whether or not that loss was foreseeable, even if You have been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.

12. DISCLOSURE

12.1 Market Disclosure

When You become a customer of Ours, You agree to allow Us to reference You as a customer using Our technology on Our website and in print copy or marketing collateral. We will use Your company logo for this purpose, but not for any other purpose.

13. TERM AND TERMINATION

13.1 Term of Agreement

This Agreement commences on the date You first sign an Order Form and continues until all subscriptions thereunder have expired or have been terminated.

13.2 Term of Purchased Subscriptions

The Term of each subscription shall be as specified in the applicable Order Form and is subject to any special terms and conditions specified in the applicable Order Form. Except as otherwise specified in an Order Form, the Term of each subscription will automatically renew for additional periods equal to the expiring Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Term. We will endeavour to give you 60 days’ notice before the expiry of the relevant Term to enable you to decide whether you wish to discontinue using our Products and Services.  If you do not advise that you wish to discontinue with our Products and Services at least 30 days before the end of the relevant Term then this Agreement will automatically roll over by the period set out above. Your Fees during any automatic renewal term will be the same as applied during the Term immediately automatic renewal term unless We have given You written notice of a price increase at least 60 days before the end of that prior Term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your Fees are  fixed, We will not increase fees for that period of time.

13.3 Termination

If either party:

  1. breaches any of the terms of this Agreement and does not remedy the breach within 30 days after receiving notice of the breach, if the breach is capable of being remedied;
  2. breaches any of the terms of this Agreement and the breach is not capable of being remedied; or
  3. either party becomes insolvent or its business goes into liquidation or has a receiver or manager appointed of any of its assets or if it becomes bankrupt, or makes any arrangement with its creditors, or become subject to any similar insolvency event in any jurisdiction,

the other party may elect to terminate the Agreement and if You are in default then We may elect to suspend or terminate Your use of any one or more of the Services or Products and You will remain liable for:

  1. damages suffered or incurred by us; and
  2. any accrued charges and amounts in respect of periods of time prior to termination, and You will immediately cease to have any rights to use the Products and receive the Services.

13.4 Refund or Payment upon Termination

  1. If this Agreement is terminated, We will not provide, and You are not entitled to receive, any refund for any amounts prepaid under any Order Form or invoice,  and termination will not relieve You of Your obligation to pay any undisputed fees payable to Us for the period prior to the effective date of termination.
  2. If this Agreement is terminated, We will not provide, and You are not entitled to receive, any refund for any amounts, and You are not relieved of Your obligation to pay any undisputed fees payable to Us up to and including the expiration date of the contracted period.

13.5 Surviving Provisions

Clauses 6 (Fees and Payment), 10 (Mutual Indemnification) and 11 (Limitation of Liability) will survive any termination or expiration of this Agreement.

14. PRODUCT SUPPORT

14.1 Overview

You will receive Support Services for the Services and Products as detailed in the Order Form for the duration of the Term of each subscription. In all cases, Your support requests must be submitted via our online ticketing system or email and only elevated to telephone communication when initiated by Our customer support team members. You will receive further details on the support request process provided during the onboarding phase.

14.2 Summary of Services Offered and included under this Agreement

The following Support Services are provided to You under this Agreement:

  1. Email support, which may include at Our option the provision of general information and troubleshooting, problem determination, isolation and verification details as well as instructed solutions.
  2. Remote assistance using administrative login details to further investigate incidents, and where possible provide on-the-spot solutions and make administrative adjustments.
  3. Elevation of initial email enquiries to telephone communications if immediate, further information, investigation or support of an incident is required.

14.3 Support Response Times

We shall respond to your support request within 48 Hours during working days (Monday – Friday) of the time zone from which the support request originated. You acknowledge that it may not be possible to provide a complete resolution to the support request within this time frame.

14.4 Support Request Procedures

  1. Your requests for Support services must be sent via the in-Platform ticketing system, or by email with further details on the support request process provided during the onboarding phase
  2. Our customer service team will respond to Support Request as soon as available within support hours in one of the following ways:
    1. Ticket/Email Response: The provision of general information and troubleshooting, problem determination, isolation and verification details as well as instructed solutions via email reply.
    2. Telephone Response: Our team member will elevate a support request to telephone communications if direct verbal communications are required to find a suitable solution, investigate and further isolate issues and personally instruct users through solution processes.

14.5 Resolution

An incident will be classed as resolved as soon as Our customer support team member has provided You with what it believes to be the appropriate solution, or confirmed that the Services and Products is functioning in its usual manner and have marked the ticket in question as ‘Solved’ or ‘Closed’. The status of the incident ticket will be considered to be “On Hold” if We are waiting for positive confirmation from You about any aspect of the incident.

14.6 High-level Elevation and Consulting

In some cases, You may request additional services to modify or improve the Services and Products. In such cases a consulting or technical services proposal will be provided by Us to You. In such cases – the new consulting or technical services proposal will cover the cost of the services requested by You. If You and Us reach agreement on the Services and Products to be provided by Us, and the charges to be paid by You for those Services and Products, we will enter into an Order Form for the provision of those Services and Products.

14.7 Hardware, internet and security

  1. You acknowledge and agree that use of Our Products and Services requires internet access which may be affected by factors beyond Our control. Any access to the internet and storage of data on servers may involve risks and that while as far as reasonably and commercially possible We will try to, We cannot guarantee security.
  2. Submissions made via email are not protected by encryption and may be vulnerable to interception during transmission. We do not guarantee the uninterrupted availability of Our Products and Services, website, applications hosted by the website, its servers (or the servers of third parties, which We may engage to provide the whole or part of the Services) including connections to Our server because these may be dependent upon third party networks and security measures over which We have no control.
  3. We may recommend a minimum set of hardware specifications for You in order to obtain the best results from using Our Products and Services.   You acknowledge and agree that if such minimum specifications are not adhered to, then Our Products and Services may not function properly.

15. NON-DISCLOSURE OBLIGATION

15.1 Confidential Information

In this Agreement, “Confidential Information” means information of whatever nature and in whatever form (including electronic, magnetic and other non-tangible forms capable of being read by human beings or not) concerning the operations, dealings, organisation, personnel, business strategies, ideas or intellectual property rights of a party (“Discloser”) which is received by, disclosed to or discovered by the other party (“Recipient”) pursuant to, in connection with or as a result of this Agreement or any action taken under this Agreement. For the avoidance of doubt, Our Confidential Information includes the Services and Products and details about our Services and Products and Confidential Information of Our licensors and subcontractors.

15.2 Exceptions

This Agreement imposes no obligation upon Recipient with respect to Discloser’s Confidential Information which Recipient can establish by legally sufficient evidence:

  1. was in the possession of, or was rightfully known by Recipient without an obligation to maintain its confidentiality prior to receipt from Discloser;
  2. is or becomes generally known to the public without violation of this Agreement; or
  3. is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality.

To the extent Recipient may be required to disclose Confidential Information in a legal proceeding or as otherwise required by law or an applicable authority, Recipient may make such disclosure; provided that Recipient:

  1. notifies Discloser of such requirement prior to disclosure;
  2. makes diligent efforts to avoid and limit disclosure;
  3. seeks confidential treatment of the information so required to be disclosed; and
  4. complies with any protection order or equivalent.

15.3 Confidentiality

Recipient must keep secret and confidential all Confidential Information of Discloser and must not use or disclose any of Discloser’s Confidential Information without the prior written consent of Discloser, except to the extent necessary to disclose Confidential Information for the purposes of carrying out an obligation or responsibility of Recipient under this Agreement, provided that the person to whom the Confidential Information is disclosed is subject to obligations of confidentiality offering no less protection (to Discloser) than as set out in this clause 15.

15.4 Acknowledgment

Each party acknowledges that the Confidential Information of the other party is of a proprietary and confidential nature and that any un-authorised disclosure or use of the Confidential Information, without written prior permission of the Discloser, may (depending on the circumstances):

  1. not be capable of reasonable or adequate compensation in the form of an award of damages; and/or
  2. cause irreparable injury to the Discloser.

15.5 Personnel

Each party must take all reasonable steps to ensure that each of its personnel to whom any of the other party’s Confidential Information is disclosed must not use or disclose that Confidential Information or any part of it except in a manner permitted by clause 15.3.

15.6 Return of materials

Subject to clause 15.7, Recipient must on demand by Discloser return (and must cause Recipient’s personnel to return) to Discloser all copies (including partial copies) of Discloser’s Confidential Information.

15.7 Retention for quality assurance purposes

Recipient may retain, on a confidential basis, one copy of Discloser’s Confidential Information for record keeping and quality assurance purposes.

15.8 Terms of Agreement Confidential

The parties agree that the terms and conditions of this Agreement and the fees payable under this Agreement are confidential and will be regarded as Our Confidential Information. We may however use these terms and conditions as the basis for Our contracts with other customers.

15.9 Public announcements

Neither party may make statements to the media, or public statements generally, relating to the other party or to such other party’s Confidential Information. However, either party may make such statements about the general nature of the commercial relationship between the parties.

16. PRIVACY

  1. Each party must:
    1. comply with all Privacy Laws that are applicable to it in relation to Personal Data;
    2. not do anything or omit to do anything with Personal Data that will cause the other party to breach any Privacy Law applicable to it; and
    3. take all reasonable steps to ensure that the Personal Information is protected against any misuse, loss, unauthorised access, modification or disclosure.
  2. You hereby warrant that You have obtained all necessary consents to enable Us to receive, use and process any Personal Data provided or accessed  by Us in connection with this Agreement, the Services and Products.
  3. To the extent the EU General Data Protection Regulation applies to any Processing of Personal Data by Us on Your behalf in connection with this Agreement, We are a Processor and You are a Controller and this Processing of Personal Data will be governed by Our standard Data Processing Agreement (“DPA”).  Any capitalised terms not defined in this Agreement are defined as set out in the DPA.

17. MISCELLANEOUS

17.1 Compliance with Laws

You agree that You must, in connection with this Agreement and its subject matter, comply with all applicable laws and regulations.

17.2 Assignment

You must not assign or novate any of Your rights or obligations under this Agreement without Our prior written consent. Any purported assignment or novation by You without Our prior written consent is of no effect and voided.  We may assign or novate our rights and obligations under this Agreement by notice to you if We sell Our business, or otherwise undertake a restructure or reorganisation.  Otherwise We will seek Your consent in relation to any assignment or novation of our rights.

17.3 Governing Law

  1. This Agreement shall be governed by the laws of New South Wales, Australia. All disputes relating to this Agreement, or its subject matter, must be resolved in the courts and court registries located in New South Wales.  You cannot seek to have any proceedings removed from the jurisdiction of New South Wales, Australia on the grounds of forum non conveniens.
  2. If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by a mutually agreed, qualified party in Sydney.
  3. Despite paragraph (a), We will not be prevented from taking proceedings relating this Agreement in any other courts of any country or State.  To the extent allowed by law, We may take concurrent proceedings in any number of jurisdictions.

17.4 Variation

We reserve the right to vary and update this Agreement from time to time during the Term of each subscription and shall provide you with at least 30 days’ prior notice of any updates to this Agreement. Your continued use of the Services and Product beyond the effective date of the updated Agreement shall constitute your acceptance of the updated Agreement. If You don’t agree with any update of this Agreement, You may elect to terminate the Agreement within 30 days’ after We notify You of the update.

17.5 Entire agreement

This Agreement constitutes the entire agreement between You and Us in respect of the Services and Products This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between You and Us.  No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

17.6 Force majeure

We will not be liable for any failure to perform, to the extent caused by a Force Majeure Event. If the failure due to such circumstances continues for ninety (90) or more consecutive days, either You or Us may terminate this Agreement with immediate effect by written notice to the other party.

17.7 Severance and waiver

If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party’s right to exercise such right or any other right in the future unless expressly waived in writing.

17.8 Limitation of actions

Except for actions for non-payment or breach of Our intellectual property rights, no action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.

17.9 No third-party rights You acknowledge that:
  1. the only parties to this Agreement are You and Us;
  2. no rights are granted by Us to any third party associated with You; and
  3. Our obligations and responsibilities under this Agreement are enforceable only by You (and for the avoidance of doubt, no enforcement action, injunction or claim for damages may be commenced or continued against Us by any third party associated with You).
If a party consists of more than one person an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them.

17.10 Disparaging Statements

Neither party will make any false, misleading or false and disparaging statements regarding the other party or its technology, products or services, or their capabilities, features, functions or performance, including without limitation in or in the course of any sales, marketing, publicity or other activities under or in relation to this Agreement.

17.11 Transactions

You acknowledge that We are not a party to any transaction that You enter into with any third party (including, for example, any of Your customers), even if (for example) the Platform provides a payment gateway or other functionality to facilitate settlement of such transactions.

17.12 Independent contractors

We are not an employer, employee, agent or partner of You, and We are not engaged in any joint venture with You.

Validation

Both relevant Parties have commenced the terms and conditions of this contracts from the signing date of the relevant Order Form.