General Terms

1. Definitions and interpretation

1.1 Definitions

In this Agreement unless the context indicates a contrary intention:
Affected Obligations has the meaning given to that term in the definition of Force Majeure Event.
Affected Party has the meaning given to that term in the definition of Force Majeure Event.
Agreement means this agreement, its recitals, schedules (if any) and annexures (if any),and includes the Provided Services.
Australian Consumer Law or ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Background Material means any material in which the Intellectual Property Rights are owned by, licensed to or developed by or on behalf of a party which are pre-existing or created independently of this Agreement but does not include the Services.
Business Associate means a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a Covered Entity.
Business Day means a day excluding a Saturday, Sunday or public holiday in the Jurisdiction.
Commencement Date means the commencement date set out in the Provided Services.
Confidential Information means: (a) the terms of this Agreement including Information submitted or disclosed by either party during negotiations, discussions and meetings relating to this Agreement;
(b) Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
(c) all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party, but does not include Your Data, and Information which:
(d) prior to the execution of this Agreement is in the public domain;
(e) hereafter becomes part of the public domain other than as a result of an unauthorised disclosure by either party to this Agreement;
(f) is or becomes available to a party to this Agreement from a Third Party lawfully in possession of such Information and who has the lawful power to disclose such Information to the party on a non-confidential basis; or
(g) is rightfully known by a party to this Agreement (as shown by written record) prior to the date of disclosure under this Agreement.
Disclosing Party means the party to whom Information belongs or relates.
Documentation means the user guides and other documents provided with the SaaS Services.
Early Termination Fee means 80% of the Fees payable for the remainder of the Initial Term of the relevant Provided Services.
Effective Date means the date this Agreement is executed by the parties.
Fees means the fees for the Services as set out in the Provided Services.
Force Majeure Event means an event beyond the reasonable control of a party including any act, event or cause being:
(a) an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, insurrection, civil commotion, national emergency (whether in fact or Law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, epidemic, quarantine, radiation or radioactive contamination;
(b) an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or
(c) termination or withdrawal by Third Party providers of any of the products, facilities or services used to provide the Services, or other service disruptions involving hardware, software of power systems within such party’s possession or reasonable control and denial of service attacks, to the extent that the act, event or cause directly results in a party (Affected Party) being prevented from or delayed in performing one or more of its material obligations under this Agreement (Affected Obligations).
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction.
Information means any information, whether oral, graphic, electronic, written or in any other form, including:
(a) forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
(b) copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
(c) samples or specimens disclosed by either party.
Insolvency Event means any one or more of the following events occurring in respect of a person:
(a) a resolution is passed for the winding up of that person (other than for the purposes of reconstruction or amalgamation, which, in the case of a party, is on terms which have been previously approved in writing by the other party);
(b) a liquidator, provisional liquidator or receiver or receiver and manager, voluntary administrator, or administrator of a deed of company arrangement is appointed to all or any part of the property of that person;
(c) a receiver, receiver and manager, voluntary administrator or an administrator of a deed of company arrangement, is appointed to, or a mortgagee takes possession of, all or any part of the business or assets of that person;
(d) that person makes any composition or arrangement or assignment with or for the benefit of its creditors;
(e) that person or any creditor appoints a voluntary administrator or a resolution is passed for that person to execute a deed of company arrangement;
(f) that person ceases, or threatens to cease to carry on its business;
(g) that person becomes unable to pay its debts as and when they become due; or
(h) any event analogous or equivalent to the events described in paragraphs (a) to (g) occurs in respect of that person.
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
(a) patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder’s rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of these rights;
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and
(d) all renewals, divisions and extensions of these rights.
Jurisdiction means Queensland, Australia.
Law means:
(a) principles of law or equity established by decisions of courts;
(b) statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Government Agency; and
(c) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Agency that has the force of law.
Loss means any loss, damage, cost or expense (including legal costs on a full indemnity basis) whether incurred by or awarded against a Party under this Agreement.
Malicious Code means any virus, Trojan horse, worm, logic bomb or other malicious code that infect, manipulate, modify, deny, corrupt or inhibit the operation of the SaaS Services.
Personal Information means Information or an opinion (including Information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws.
Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or Personal Information.
Privacy Policy has the meaning given to that term in clause 11(c)(ii)..
Receiving Party means the party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party.
Recipient has the meaning given to that term in clause 10.3(a).
Related Entity has the meaning given to that term in the Corporations Act 2001 (Cth).
Provided Services means the Services agreed by You and Us to be delivered under this Agreement.
SaaS Services means the software as a service set out in the Provided Services which is to be provided by Us to You, and includes the Support Services.
Scheduled Downtime has the meaning given to that term in clause 4.2(b).
Services means the SaaS Services.
Security Incident means an actual, probable, or where there are reasonable grounds to suspect, corruption, interference or loss, or unauthorised access, use, modification, processing, disclosure or other misuse of Your Data or Personal Information, including a serious data breach or an eligible data breach within the meaning of the Privacy Laws.
Site means Your location or locations where the Services may be provided.
Suggestion has the meaning given to that term in clause 9(g).
Support Services means the support services to be provided by Us to You as set out in the Provided Services.
Term has the meaning in accordance with clause 2.
Third Party means a party other than Us or You.
Use Restrictions means any use restrictions set out in the Provided Services.
User means any individual You authorise to access and use the Services, subject to Use Restrictions.
Your Data means Your data or data supplied by or on behalf of You that is hosted on the Services.

1.2 Interpretation
In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a gender includes the other genders;
(c) the headings are used for convenience only and do not affect the interpretation of this Agreement;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a document includes the document as modified from time to time and any document replacing it;
(f) a reference to a party is to a party to this Agreement and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(g) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(h) the word “person” includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(i) the word “month” means calendar month and the word “year” means 12 months;
(j) the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(k) a reference to a thing includes a part of that thing;
(l) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
(m) wherever “include”, “for example” or any form of those words or similar expressions is used, it must be construed as if it were followed by “(without being limited to)”;
(n) money amounts are stated in Australian currency unless otherwise specified;
(o) a reference to time is to the time in the capital city of the Jurisdiction;
(p) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body;
(q) any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and
(r) any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally;
(s) this Agreement incorporates the terms of the Privacy Policy and any terms which are defined in the Privacy Policy may be used but not defined in this Agreement.

2. Formation and Term

These terms form an agreement between us, Selectah Software Pty Ltd CAN 641 317 955 (Us, Jeeve) and the party agreeing to these terms (You).

This Agreement commences on the Effective Date and continues on a monthly basis (Term). You can cancel this Agreement at any time in accordance with our termination clauses below. We may amend Our Fees at any time but it will be 60 days before the new Fees take effect.

3. Services

3.1 Generally
(a) Subject to the terms and conditions of this Agreement, We will provide the Services to You. We will use reasonable endeavours to perform the Services in accordance with the Provided Services in all material respects.
(b) You will comply and will procure your Users comply at all times with the Use Restrictions.
(c) Without prejudice to any other right or remedy under this Agreement available to Us, Our ongoing provision of Services is subject always to:
(i) You procuring that your Users comply with this Agreement; and
(ii) Your payment of any Fees in accordance with clause 6 below.
(d) You will, and You will ensure that your Users will, use the SaaS Services in accordance with the Documentation and comply with all password and other security arrangements and policies We specify from time to time in respect of the SaaS Services.
(e) You will ensure that You authorise individuals to be Users only to the extent necessary such Users require access to the SaaS Services to perform their duties. If any User ceases to be authorised by You to access and use the SaaS Services for any reason (including termination of employment of the relevant User), You will promptly take steps to ensure that the User ceases to access and use the SaaS Services.
(f) You will be responsible for all actions taken using your Users’ logon and passwords.
(g) You will be responsible for the content of all of Your Data for complying with all applicable Laws in respect of Your Data.

3.2 SaaS Services
(a) In providing the SaaS Services, We will:
(i) use reasonable endeavours to ensure that the SaaS Services will be accessible and functional on a continuous basis, subject to:
(A) internet disruption
(B) any Scheduled Downtime; or
(C) a Force Majeure Event.
(b) We may make any repairs, modifications, additions and upgrades to the SaaS Services, including engaging in system maintenance, as it deems necessary or desirable (Scheduled Downtime), provided that:
(i) the repairs, modifications, additions or upgrades do not substantially change(other than through improvements) the functionality of the SaaS Services; and
(ii) We take reasonable steps to advise You in advance of any Scheduled Downtime.
(c) We will take reasonable steps to ensure Scheduled Downtime is scheduled at times to minimise disruption to the SaaS Services.
(d) You agree that the SaaS Services are provided “as-is” and that Your decision to enter into this Agreement is not contingent on the delivery of any future functionality or features.

4. Your obligations

In receiving the Services, You agree that You:
(a) will pay all Fees in accordance with clause 6 of this Agreement and the Provided Services;
(b) must not make the SaaS Services available to anyone other than the Users;
(c) must use commercially reasonable efforts to prevent unauthorised access to or use of the SaaS Services, and notify Us promptly of any such unauthorised access or use;
(d) must provide Your Data as necessary to ensure that We can deliver the Services and they can be utilised by You and Your Users;
(e) are responsible for obtaining any consents required as well as the accuracy, quality and legality of all of Your Data;
(f) are responsible for all acts and omissions of Users as if they were Your acts and omissions;
(g) must take all reasonable steps to mitigate the risk inherent in the use of the SaaS Services (such as loss of Your Data) including performing regular backups of all of Your Data and having business continuity plans in place in accordance with standard industry practice;
(h) are responsible for providing the services and equipment necessary to make use of the Services, which includes, without limitation, internet connectivity;
(i) must use the SaaS Services only in accordance with this Agreement and applicable Laws;
(j) must not interfere with or disrupt the integrity or performance of the SaaS Services;
(k) must not resell, rent, loan, sub-license, lease, distribute or license the use of, or attempt to grant any rights to, the SaaS Services to any Third Party, including but not limited to using the SaaS Services to operate a service bureau;
(l) must not use the SaaS Services to store or transmit infringing, fraudulent or otherwise unlawful material or otherwise use the SaaS Services in a manner which is unlawful or would infringe the rights of another person (including any Intellectual Property Rights);
(m) must not introduce to the SaaS Services, or use the SaaS Services to, store or transmit a Malicious Code;
(n) must not attempt to gain unauthorised access to the SaaS Services or its related systems or networks;
(o) must comply with all reasonable directions provided by Us with respect to the Services;
(p) must provide access to any site or location as reasonably required by Us; and
(q) upon Our request, provide reasonable assistance in the investigation of any outage or security issue relevant to the SaaS Services, or any suspected breach of this Agreement.

5. Fees and payments

(a) We will invoice You for the Fees in accordance with the payment terms set out in the Provided Services.
(b) Fees are exclusive of all taxes.
(c) Fees are paid on a monthly subscription basis or by way of tax invoice in which case you must pay all invoices within 7 days of receipt.
(d) If You fail to pay an invoice in accordance with clause 6(b), We may, without limiting any other rights under this Agreement, do one or both of the following:
(i) suspend Our supply of the Services (including access to the SaaS Services) until You pay the invoice in full; and
(ii) charge interest on the amount overdue at a rate of 10% (or the maximum amount permitted by Law) per annum calculated daily from the date the relevant payment was due until the date on which it is paid in full.
(e) If You dispute any item on any invoice in whole or in part, You will notify Us within 14 days, and the parties will use all reasonable endeavours to settle the dispute at their earliest possible convenience in accordance with clause 17.

6. GST

6.1 Definitions
In this clause 7 only:
(a) the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act); and
(b) the Supplier means any party treated by the GST Act as making a Supply under this Agreement.

6.2 Consideration is GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.

6.3 Payment of GST
(a) If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
(b) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.

6.4 Reimbursement of expenses
If this Agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any Loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
(b) if the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount.

7. Data Security 

(a) As between the parties, You own all of Your Data.
(b) You grant Us a non-exclusive, royalty-free, irrevocable, worldwide licence to:
(i) use Your Data in an aggregated anonymised form for Our internal business purposes, including to improve the Services; and
(ii) share Your Data in an aggregated anonymized form with Our Related Entities and other Third Parties We may contract with from time to time.
(c) In providing the Services, We will:
(i) maintain reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data; and
(ii) not access Your Data other than in accordance with this Agreement.
(d) We will use commercially reasonable endeavours when performing the Services (including improving access to the SaaS Services) to ensure that Your Data is not corrupted, deleted or subjected to unauthorised use, and that no errors are introduced to Your Data.
(e) At any time prior to, or on expiry or termination of this Agreement, You may request in writing, and We will provide, or allow You to download, a copy of Your Data in an industry standard format, within 21 days of the relevant request.

8. Intellectual Property

(a) You acknowledge and agree that all Intellectual Property Rights of whatever nature in the Services (including the product of any Services) are and shall remain Our property, and nothing in this Agreement should be construed as transferring any aspects of such rights to You or any Third Party.
(b) We grant You and Your Users a non-exclusive, non-transferable, royalty-free licence to use and access the SaaS Services and any product of the Professional Services for the Term, subject to any Use Restrictions set out in the Provided Services.
(c) Nothing in this Agreement affects the ownership of a party’s Background Material. Each party grants the other party a non-exclusive, non-transferable, royalty free licence to use a party’s Background Material solely for the purposes, and to the extent necessary, for the other party to perform its obligations and exercise its rights under this Agreement.
(d) You agree not to reverse engineer the SaaS Services.
(e) You will not use or access the SaaS Services to, and will take reasonable measures to ensure that Your Users do not use or access the SaaS Services to:
(i) build a competitive product or service;
(ii) make or have made a product or service using similar ideas, features, functions or graphics of the SaaS Services;
(iii) make derivative works based upon the SaaS Services;
(iv) remove, modify or obscure any copyright, trade mark or other proprietary rights that appear on the SaaS Services; or
(v) “frame”, “mirror” or otherwise copy any features, functions or graphics of the SaaS Services.
(f) You will immediately notify Us if You become aware that the SaaS Services may infringe the Intellectual Property Rights of a Third Party.
(g) If You suggest any new features, improvement or corrections to the SaaS Services (Suggestion), such Suggestion shall be Our sole and exclusive property free from any confidentiality restrictions that might otherwise be imposed upon Us pursuant to clause 10 or any other restriction. To the extent that You have any rights, title or interest in a Suggestion, You assign Us absolutely and beneficially, the whole of Your rights, title and interest including any Intellectual Property Rights in and to the relevant Suggestion. We hereby grant You a non-exclusive perpetual irrevocable, non-transferable licence to the Suggestion
(h) To the extent You provide any of Your Data in connection with the Services, it is hereby agreed that We shall have no rights in connection with Your Data, except as expressly permitted in this Agreement. You hereby grant Us a non-exclusive, non-transferable, royalty free licence (including the right to sub-license) to use, copy, edit, adapt and communicate Your Data during the Term for the sole purpose of providing the Services in accordance with this Agreement and to adapt that Data into an anonymised form and You perpetually irrevocably licence Us to use, adapt, copy and communicate that anonymised Data.

9. Confidential Information

9.1 Obligations of confidentiality
Subject to clauses 10.2 and 10.3, the Receiving Party must:
(a) keep the Confidential Information confidential and not directly or indirectly disclose, divulge or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;
(c) only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under this Agreement;
(d) not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement; and
(e) take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 10.3 complies at all times with the terms of this clause 10.1 as if that person were a Receiving Party.

9.2 Disclosure required by Law
The obligations of confidentiality under clause 10.1 do not apply to any disclosure of Confidential Information by the Receiving Party that is necessary to comply with any court order or applicable Law if, to the extent practicable and as soon as reasonably possible, the Receiving Party:
(a) notifies the Disclosing Party of the proposed disclosure;
(b) consults with the Disclosing Party as to its content; and
(c) uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure.

9.3 Authorised disclosure
(a) A Receiving Party may disclose Confidential Information to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a “need to know basis” and, prior to the disclosure:
(i) the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed; and
(ii) the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations in this clause 10 as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.
(b) The Receiving Party is liable for any breach of this clause 10 by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.

9.4 Breach of Confidence
Each party must promptly notify the other party if it becomes aware of any unauthorised access, use or disclosure of all or any part of the Confidential Information and must give that other party all reasonable assistance in connection with any claim which it may institute in connection with that unauthorised access, use or disclosure.

9.5 Return or destruction of Confidential Information
Immediately on the written request of the Disclosing Party or on the termination of this Agreement for any reason, a Receiving Party must:
(a) cease the use of all Confidential Information of or relating to the Disclosing Party (or any Related Entity of the Disclosing Party);
(b) deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording or constituting that Confidential Information or, at the option of the Disclosing Party, destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials; and
(c) upon delivery of the Confidential Information under clause 10.5(b), permanently delete that Confidential Information from all electronic media on which it is stored, so that it cannot be restored.

9.6 Publicity
Notwithstanding any provision of this Agreement or any other agreement between You and Us, We may during and after the Term communicate in any media (including press releases, general announcements, annual reports and print and online marketing materials), the following Information:
(a) Your name; and
(b) a description of the Services provided to You under this Agreement and any other agreement between You and Us.

10. Privacy

(a) You acknowledge that You are primarily responsible for the collection, use and storage of any of Your Data affected by any data protection or privacy legislation, guidelines or directives including without limitation Privacy Laws, through operation of the SaaS Services. You undertake to ensure that You and all Your Users including employees, agents and contractors will comply with the requirements of any Privacy Laws that may be applicable to the operation of the SaaS Services and otherwise in respect of any Personal Information collected, held, accessed, used or otherwise dealt with by You in connection with this Agreement, and that You and they will not do or omit to do anything to cause Us to breach such Privacy Laws.
(b) You acknowledge and agree that:
(i) from time to time in order to perform its obligations under this Agreement, We will collect Personal Information about Your staff or Your customers;
(ii) in performing our obligations under this Agreement or otherwise required by law, We may provide that Personal Information to Third Parties, in Australia or elsewhere.
(c) You undertake to take reasonable steps to ensure that Users, staff, clients or customers are aware:
(i) that We may from time to time collect Personal Information about them in order to perform Our obligations under this Agreement; and
(ii) of Our Privacy Policy which is available at: https://www.jeeve.com.au/term/ (Privacy Policy).
(d) You must ensure that you have provided the appropriate notifications and procured the necessary consents or authorisations to allow Us to collect the data and Personal Information referred to in this clause and to use that data and Personal Information as contemplated by this Agreement and Our Privacy Policy and in accordance with the Privacy Laws.
(e) Without limiting this clause , if You use the Services to send SMS messages for marketing purposes to Your clients or customers, You will comply with the Privacy Laws and not do, or omit to do, anything that will cause Us to breach the Privacy Laws in Our facilitation of this under the Services. You must notify Us immediately upon becoming aware of any Security Incident or breach of any Privacy Laws that may be related to the Services, and:..
(i) include in that notice all relevant details then known (and promptly supplement this with further written notifications to Us as further details become known); and
(ii) co-operate, at Your own cost, with Us in relation to an investigation of any Security Incident or breach of Privacy Laws, and the resolution of any Security Incident or breach of Privacy Laws, to Our satisfaction.

11. Acceptable Use 

In addition to Your other obligations as set out in this Agreement, You must (and must ensure that Users will):
(a) not interfere with or disrupt the integrity or performance of the SaaS;
(b) not sell, resell, rent or leave the SaaS;
(c) not use the SaaS to store or transmit infringing, fraudulent or otherwise unlawful material;
(d) not attempt to gain unauthorised access to the SaaS or its related systems or networks;
(e) not access the SaaS in order to build a competitive product or service;
(f) not use the SaaS to breach or circumvent any applicable Laws;
(g) not damage or tamper with the operation of the SaaS;
(h) not bypass (or attempt to bypass) any security mechanisms imposed by the Services;
(i) not impersonate or falsely claim to represent a person or organisation;
(j) use its best endeavours to not introduce any Malicious Code to the SaaS;
(k) not download, transmit, copy, store, reformat or otherwise modify any element of the SaaS; and
(l) not publish, or otherwise make available, data which is illegal, fraudulent, defamatory, or otherwise offensive to Third Parties or otherwise use the SaaS in a manner which is unlawful or would infringe the rights of another person, including Intellectual Property Rights, (collectively, the Acceptable Use Policy).

12. Insurance 

We agree to take out and maintain during the Term and for at least 1 year following the termination or expiration of this Agreement, the insurance policies specified in the Provided Services, if any.

13. Warranties and Disclaimer

(a) Each party warrants that:
(i) it has full legal capacity and power to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
(ii) it has obtained or will obtain all licences, permits and Third Party authorisations necessary for it to perform its obligations under this Agreement.
(b) We warrant that We will provide the Services using all due skill, care and diligence, and otherwise in accordance with this Agreement.
(c) You warrant that You have not relied on any representation made by Us which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Us.
(d) You acknowledge and agree that the Services are provided ‘as is’ and that We make no representations, warranties or guarantees of any kind, whether express, implied, statutory or otherwise regarding the Services or any derived output, including any warranty that the Services or any output will be uninterrupted, error free or free of harmful components, or that any of Your Data will not be lost or damaged.
(e) We disclaim all liability for any loss or obligations you incur in relation to payment of Taxes including payroll tax. You acknowledge that the Services are not intended to ensure compliance with any taxation obligations you may have.
(f) You acknowledge and agree that if you use the payment plan function within the Services (Payment Plan):
(i) the Payment Plan is a sample agreement only and should not be relied upon;
(ii) You will make your own determination about the terms on which you wish to offer a form of payment plan to Patients;
(iii) You release Us from any and all liability you incur in relation to any form of payment plan entered into with a Patient through the Services.
(g) Any representation, warranty, condition, guarantee, indemnity or undertaking that would be implied in, or effect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment is excluded to the maximum extent permitted by Law.
(h) Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable Law that cannot be excluded, restricted or modified by agreement.
(i) To the fullest extent permitted by Law, Our liability for a breach of a non-excludable guarantee referred to in clause 14(e) is limited, at Our option, to:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.

14. Liability and Indemnity 

14.1 Liability
To the extent permitted by Law, and subject to clauses 15.2 and 15.3, a party’s maximum aggregate liability to the other under or in connection with this Agreement or its subject matter, however arising (including breach of contract, negligence, misrepresentation or other claim), is limited to the Fees paid by You to Us for the Services in the 12 months prior to the event giving rise to the liability under this Agreement.

14.2 Exclusion of Consequential Loss
Subject to clause 15.3, neither party shall be liable to the other party for any loss of business, goodwill, contracts, profits, anticipated savings, loss or corruption of data, or for any indirect, special, consequential, incidental, exemplary or punitive damages or Loss (and even if that party has been advised of the possibility of such damages or Loss) which may be suffered or incurred or which may arise directly or indirectly under or in relation to this Agreement.

14.3 Exclusions
Nothing in this Agreement operates to limit or exclude:
(a) either party’s liability to the other in respect of direct Losses arising out of or in connection with:
(i) damages for bodily injury (including death) and damage to real property and tangible personal property;
(ii) any fraudulent or unlawful acts or omissions; or
(iii) the indemnities set out in clause 15.5; or
(b) Your liability for any Fees payable under this Agreement.

14.4 Contribution
The liability of a party for any cause of action (including under an indemnity) will be reduced proportionally to the extent that the liability arises as a result of a breach of this Agreement by the other party.

14.5 Indemnity
(a) Subject to clause 15.5(b), You indemnify Us against any and all claims by a Third Party and Losses suffered or incurred by Us arising out of or in connection with Your or Your Users’ use of the SaaS Services including in relation to any SMS marketing or in relation to Privacy Laws.
(b) We indemnify You against any and all claims by a Third Party to the extent arising from a claim by a Third Party that Your or Your Users’ use of the SaaS Services in accordance with the terms of this Agreement infringes the Intellectual Property Rights of that Third Party.
(c) You will indemnify, defend and hold Us harmless against:
(i) any and all claims and Losses (including reasonable legal fees) whatsoever and howsoever incurred by Us in connection with or arising out of a breach by You of any provision of this Agreement relating to confidentiality or Our Intellectual Property Rights; and
(ii) any Loss (including reasonable legal fees) arising out of a claim by a Third Party alleging infringement if Our ability to defend or settle the relevant claim has been prejudiced by Your failure to comply with the requirements set out in clause 15.5(d).
(d) Clause 15.5(b) will only apply if You:
(i) promptly provide Us with written notice of such a claim against You;
(ii) give Us sole control of the defence and settlement of such claim against; and
(iii) provide Us with all reasonable assistance in relation to the defence and settlement of such claim.
(e) If a claim is made by a party alleging Your use of the SaaS Services infringes that party’s Intellectual Property Rights, We will, at Our option either:
(i) modify or replace the SaaS Services so that they become non-infringing;
(ii) procure for You the right to continue using the SaaS Services; or
(iii) if the options in 15.5(e)(i) and 15.5(e)(ii) are not commercially viable, terminate this Agreement.
(f) The indemnities in this clause 15.5 are continuing obligations, separate and independent from the other obligations of the parties, and survive termination, completion or expiration of this Agreement.
(g) It is not necessary for a party to incur expense or to make any payment before enforcing a right of indemnity conferred by this clause 15.5.
(h) You must pay on demand any amount You must pay under the indemnities in clauses 15.5(a) and 15.5(c).

15. Termination 

15.1 Termination
(a) We may by notice in writing immediately terminate this Agreement (in whole or in part) if You become unable to pay amounts owed to Us under this Agreement.
(b) Either party may terminate this Agreement immediately upon written notice to the other party if: the other party is in material breach of this Agreement and:
(i) the breach is incapable of remedy; or
(ii) where the other party fails to remedy the breach within 10 Business Days of receiving written notice of the breach from the first party; or
(iii) the other party is the subject of an Insolvency Event.
15.2 Consequences of Termination
(a) Any termination under this clause 16 will be without prejudice to any right, action or remedy which has accrued or which may accrue in favour of either party.
(b) Upon termination of this Agreement by either party:
(i) You must cease Your access to and use of (and ensure Your Users cease their access to and use of) the SaaS Services;
(ii) each party must immediately cease using the other party’s Confidential Information, and comply with the provisions set out in clause 10.5;
(iii) We will provide You with a final invoice for all Services performed, up to and including the date of termination under this Agreement;
(iv) We may retain any moneys paid by You; and
(v) You shall promptly pay to Us any outstanding sums due to Us pursuant to this Agreement.
(c) This clause 16 and clauses 8(e), 9, 10, 11, 12, 14, 15, 17, 18 and 19 inclusive will survive expiration or termination of this Agreement.

16. Dispute Resolution 

16.1 Delivering a dispute notice
If any dispute, controversy or claim arises between the parties arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, a party may deliver to the other party a written notice which sets out:
(a) the nature of the dispute; and
(b) the relief or remedy that the party seeks.

16.2 Acknowledgments
The parties agree that if a dispute arises out of or relates to this Agreement, a party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 17 except to seek urgent equitable or interlocutory relief. The procedures in this clause 17 will be completed within 40 Business Days from the giving of notice referred to in clause 17.1. After expiry of this time, a party may commence legal proceedings relating to the dispute.

16.3 Process
When a dispute arises between the parties in relation to this Agreement, then:
(a) all amounts payable by You to Us which are not in dispute must be paid in accordance with this Agreement;
(b) if the parties cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each party (jointly referred to in the remainder of this clause 17 as Chief Executive Officers) for resolution;
(c) if the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral, then the parties must submit the dispute to a mediator for consideration in accordance with the Mediation Rules of the Resolution Institute, which Rules are taken to be incorporated into this Agreement.

16.4 Costs
Each party must pay its own internal and legal costs in relation to complying with this clause 17. The mediator’s costs are to be shared equally between the parties.

17. Force Majeure 

Where any failure or delay in the performance of obligations under this Agreement is caused, directly or indirectly, by a Force Majeure Event:
(a) the Affected Party must as soon as practicable give the other party written notice of that fact;
(b) the Affected Party is not liable for that failure or delay;
(c) Affected Obligations under this Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event; and
(d) if the Force Majeure Event continues for more than 90 consecutive days and while it continues, any party other than the Affected Party may, at its sole discretion, terminate this Agreement by giving written notice to the Affected Party and all other parties (if any).

18. General 

18.1 Entire understanding
This Agreement contains the entire understanding between the parties concerning the subject matter of this Agreement and supersedes, terminates and replaces all prior agreements and communications between the parties concerning that subject matter.

18.2 No adverse construction
This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for its preparation.

18.3 No waiver
(a) A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right.
(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.
(c) A waiver of a breach does not operate as a waiver of any other breach.

18.4 Severability
Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this Agreement in any other case, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

18.5 Successors and assigns
This Agreement binds and benefits the parties and their respective successors and permitted assigns under clause 19.6.

18.6 No assignment
(a) You cannot assign, novate or otherwise transfer the benefit of this Agreement without Our prior written consent.
(b) We may assign, novate or otherwise transfer the whole or part of this Agreement without Your prior written consent. You agree to execute any document necessary or desirable to give effect to this clause 19.6.

18.7 No variation
This Agreement cannot be amended or varied except in writing signed by the parties.

18.8 Governing law and jurisdiction
This Agreement is governed by and must be construed in accordance with the laws in force in the Jurisdiction. The parties submit to the exclusive jurisdiction of the courts of that Jurisdiction and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.

18.9 Notices
Any notice or other communication to or by a party under this Agreement:
(a) may be given by email and sent to [insert email address];
(b) must be in writing, legible and in English addressed (depending on the manner in which it is given) as shown below, or to any other address last notified by the party to the sender by notice given in accordance with this clause;
(c) is deemed to be given by the sender and received by the addressee:
(i) if delivered in person, when delivered to the addressee;
(ii) if posted, at 9.00 am on the second Business Day after the date of posting to the addressee whether delivered or not; or
(iii) if sent by email transmission, and no undelivered email message is received within 24 hours, at the time and the date it was sent,
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day.

18.10 Counterparts
If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document. A party may sign a counterpart by executing a signature page and electronically transmitting a copy of the signed page to each other party or their authorised representative.

18.11 Operation of indemnities
Unless this Agreement expressly provides otherwise:
(a) each indemnity in this Agreement survives the expiry or termination of this Agreement; and
(b) a party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.

18.12 Further assurances
A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.

18.13 Relationship of parties
Unless this Agreement expressly provides otherwise, nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.

18.14 Costs
Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.

18.15 Conflicting provisions
If there is any conflict between the main body of this Agreement and any schedules or annexures comprising it, then the provisions of the main body of this Agreement prevail.
The parties agree to enter into this SaaS Agreement on the terms set out above.