September 2022
Software as a Service terms of use (SaaS Terms)
Important – read carefully: These Terms and Conditions form the agreement between Money Management Group Pty Ltd ACN 008 131 137 trading as Okke (referred to as “Service Provider”, “we” or “us”) and the user (referred to as “Customer” or “you”) (Agreement). By using the Software you agree to be bound by these Terms and Conditions. If you do not agree to the terms of this Agreement, do not use the Software.
1. Definitions and Interpretations
1.1 Definitions
In this Agreement, unless the context otherwise requires:
Authorised User means the user(s) permitted to use the SaaS Services.
Business Day means a day on which banks are open for general banking business in South Australia, excluding Saturdays, Sundays and public holidays.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
Confidential Information means:
(a) Data;
(b) the terms of this Agreement; and
(c) all information, know-how, ideas, concepts, lists, format, systems, technology, industrial, marketing, Intellectual Property Rights and commercial knowledge (and whether in tangible or intangible form, oral or visual form, or recorded or stored in a document) which relates directly or indirectly to the disclosing party (Discloser), or any of its past, existing or future business, operations, administration or strategic plans or which is owned, used or licensed by the Discloser,
but does not include:
(d) information which is or becomes generally available in the public domain (other than through breach of this Agreement or an obligation of confidence);
(e) information rightfully received by the receiving party (Recipient) from a third party (that is not a representative of the Discloser) who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the Discloser; or
(f) information which the Recipient can prove by contemporaneous written documentation was already known to it at the time of disclosure by or on behalf of the Discloser (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality).
Customer Data means the Customer’s account information, account access information, registration information (which is provided by the Customer or otherwise received by Yodlee from the Service Provider or the Data Source) and includes the Data.
Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems.
Data means all of the information, documents and other data provided by the Customer or their Personnel to the Service Provider, any content uploaded by the Customer or its Personnel to the Service Provider’s System, any data which is generated by the use of the Services, any data that is stored by the Service Provider for the purpose of providing the Services, or otherwise accessed by the Service Provider in providing the Services.
Data Source means a third-party information source where the Customer holds an account from which Yodlee retrieves information, for example a bank, broker, lender or other financial service provider.
Fee means the fees payable for the SaaS Services as set out on the Website for the Customer account.
Force Majeure means any event or circumstances beyond the reasonable control of a party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, pandemic, epidemic, terrorism, war or civil riot that occurs to the extent that it:
(a) would be unreasonable to expect the affected party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and
(b) results in a party being unable to perform an obligation under this Agreement on time.
Initial Term means the initial term set out in the Customer’s account.
Insolvency Event means:
(c) a party becoming an 'externally-administered body corporate' within the meaning of the Corporations Act 2001 (Cth);
(d) any stop being taken for the winding up or dissolution of a party;
(e) a meeting of directors of a party considers a resolution that an administrator of that party should be appointed;
(f) a party being insolvent within the meaning of the Corporations Act 2001 (Cth), or being taken or presumed to be insolvent;
(g) a party commits an 'act of bankruptcy' within the meaning of the section 40 of the Bankruptcy Act 1966 (Cth);
(h) distress, attachment or other execution being levied or enforced over any of a party's property; or
(i) anything analogous to or of a similar effect to anything described in paragraphs (a) to (f) above under the law of any relevant jurisdiction occurring in respect of a party.
Intellectual Property Rights means
(j) any related confidential information, know-how or any right to have information kept confidential;
(k) copyright (including future copyright and rights in the nature of or analogous to copyright);
(l) inventions (including patents);
(m) trade marks, service marks and other related marks;
(n) designs;
(o) business names, domain names and company names; and where applicable includes:
(i) software (including the Software), software programs and source code (including the source code for the Software); and
(ii) all intellectual property rights that the Service Provider has in relation to its brands, colours, fonts, styles; and
whether or not existing at the date of this document and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.
Liability means any expense, charge, cost, liability, loss, damage, Claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Party means a party to this Agreement from time to time, and parties means all of them.
Payment Method is by credit card.
Personnel means in relation to a party, any employee, contractor, officer and agent of that party.
Products means hardware or software.
Related Body Corporate has the meaning given in section 9 of the Corporations Act 2001 (Cth).
SaaS Licence is defined in clause 4.1.
SaaS Services means the services which the Service Provider agrees to provide under this Agreement, namely access to the Software.
Service Level means any service levels set out on the Website.
Services means the SaaS Services and Support Services, to be provided or licensed by the Service Provider to the Customer under the terms of this Agreement.
Software means the software used to provide the Services, known as “Okke” and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the parties.
Support Hours means the hours listed on the Website.
Support Services are set out on the Website.
System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network.
Term means the term of this Agreement as set out in clause 19.
Website means www.okokke.com.
Yodlee means Yodlee, Inc., a Delaware corporation.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation;
(c) a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
(d) if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(e) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(f) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(g) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(h) includes and similar words mean includes without limitation;
(i) no clause will be interpreted to the disadvantage of a party merely because that party drafted the clause or would otherwise benefit from it;
(j) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(k) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(l) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(m) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(n) a reference to time is to local time in Adelaide, Australia; and
(o) a reference to $ or dollars refers to the lawful currency of Australia.
2. Acceptance
2.1 The Service Provider owns, or holds the relevant rights to, the Software and will license the use of the Software as a service to the Customer.
2.2 The Customer wishes to license the SaaS Services available at the Website from the Service Provider.
2.3 This Agreement sets out the terms upon which the Service Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the Service Provider provides the Customer with an account (Customer’s account) to access and use the Services (Effective Date).
2.4 By accessing and/or using the Services you:
(a) warrant to us that you have reviewed this Agreement, our Privacy Policy (available on the Website) and other applicable policies and you understand it;
(b) warrant to us that you have the legal capacity to enter into a legally binding agreement with us; and
(c) agree to use the Services in accordance with this Agreement.
2.5 You must not create a Customer account unless you are at least 18 years of age.
2.6 By using our Services and subscribing on our Website, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.
3. Services
3.1 On or from the Effective Date and during the Term, the Service Provider agrees to provide the Services in accordance with the terms of this Agreement.
3.2 The Customer agrees the Service Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by the Service Provider to the Customer including any Customer configuration documentation.
3.3 The Service Provider reserves the right to change or remove features of the SaaS Services from time to time. Where there is any material alteration to the SaaS Services in accordance with this clause, the Service Provider will provide the Customer with 20 Business Days’ notice and the Customer agrees that any material alteration is at the Service Provider’s discretion.
3.4 The parties agree that the Service Provider:
(a) will supply the Services on a non-exclusive basis;
(b) does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
(c) is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
3.5 The Service Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
4. SaaS Service Licence
4.1 In consideration for payment of the Fees, the Service Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with the Service Provider’s intended purpose for the SaaS Services (SaaS Licence).
4.2 The Customer agrees that the SaaS Licence:
(a) commences from the Effective Date or the day the Customer is granted access to the SaaS Services by the Service Provider, whichever occurs first;
(b) permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and
(c) permits the Customer to provide access and use of the SaaS Services to Authorised Users.
5. Licence Restrictions
5.1 The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the Service Provider’s Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
(a) resell, assign, transfer, distribute or provide others with access to the SaaS Services;
(b) “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
(c) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software ); or
(d) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.
5.2 The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Australia or the jurisdiction in which the Customer or its Personnel are located.
6. Data
6.1 The Customer grants to the Service Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to the Data or any Intellectual Property Rights in the Data:
(a) to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
(b) to do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provide such Data is re-identified;
(c) for diagnostic purposes;
(d) to test, enhance and otherwise modify the Services whether requested by the Customer or not;
(e) to develop other services or products;
(f) as reasonably required for the performance of the Service Provider’s obligations under this Agreement; and
(g) for analytical purposes and to the extent permitted by law, for all other purposes associated with offering targeted complementary services (which are not related to the Services) to the Customer, these complementary services may be offered by the Service Provider and/or third parties.
6.2 The Customer represents and warrants that:
(a) any and all Data supplied by the Customer or otherwise accessed by the Service Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured all authorisations and rights to use the Data as applicable;
(b) its Data does not breach any relevant laws, regulations or codes;
(c) its Data does not infringe the Intellectual Property Rights of any third party;
(d) it will comply with all applicable laws and regulations where the Customer accesses and publishes content using the SaaS Services; and
(e) to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.
6.3 The Customer acknowledges and agrees that:
(a) any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. The Service Provider is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
(b) the Service Provider may relocate the Data to another jurisdiction. In each case, the Service Provider will give the Customer 15 Business Days’ notice and use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;
(c) the Service Provider is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and
(d) the Service Provider is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
6.4 The Customer agrees to indemnify and hold the Service Provider harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of the Service Provider or its Personnel.
7. Support and Service Levels
7.1 During the Term, the Service Provider will provide the Support Services in accordance with the Service Levels during the Support Hours provided that:
(a) the Customer provides the Service Provider with notice for applicable Services in accordance with any applicable system and processes as set out on the Website, as applicable; and
(b) where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the Service Provider all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).
8. Service Provider Additional Responsibilities and Obligations
The Service Provider must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorised access, use, copying or disclosure.
9. Customer Responsibilities and Obligations
9.1 The Customer will provide all required materials as required by the Service Provider from time to time for the Service Provider to perform the Services.
9.2 The Customer must, at the Customer’s own expense:
(a) provide all reasonable assistance and cooperation to the Service Provider in order to enable the Service Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the Service Provider to provide the Services;
(b) use reasonable endeavours to ensure the integrity of the Data;
(c) permit the Service Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
(d) ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and
(e) make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
9.3 The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
(a) to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
(b) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(c) in any way that damages, interferes with or interrupts the supply of the Services.
9.4 The Customer acknowledges and agrees that:
(a) they are responsible for all users using the Services including their Personnel and any Authorised Users;
(b) their use of the Services will be at their own risk;
(c) they are responsible for maintaining the security of its account and password. The Service Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
(d) the Service Provider may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
(e) the Customer is responsible for all activity that occurs under their account. This includes activity of others who have logins or accounts associated with the Customer’s account;
(f) the technical processing and transmission of the Service, including the Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
(g) if the Service Provider wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to the Service Provider or make any such changes to the Customer Environment, that the Service Provider reasonably requires; and
(h) the Service Provider may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
10. Prohibited Use
10.1 The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy and fair use policy as set out on the Service Provider’s Website or as provided to the Customer from time to time.
10.2 The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
(a) use the SaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
(b) use the SaaS Services in relation to crimes such as theft and fraud;
(c) use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
(d) make any unauthorised copy of any copyrighted material owned or licenced by the Service Provider;
(e) introduce malicious programs into the Service Provider’s System (e.g. viruses, worms, trojan horses, e-mail bombs);
(f) reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;
(g) use the SaaS Services to carry out security breaches or disruptions of a network.
(h) use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers; and
(i) use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the SaaS Services.
11. Electronic Communication
11.1 The Service Provider may communicate with you by short message service (SMS) to the mobile phone number listed on your account details or electronically, including sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003 (Cth)). You consent to the Service Provider sending short message service (SMS) and Electronic Communications to you.
11.2 Short message service (SMS) and electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The Service Provider will not be liable to you in respect of any error, omission or loss of confidentiality arising from or in connection with the short message service (SMS) or electronic communication of information to you.
11.3 You undertake to provide the Service Provider with any changes to your contact information including email address and mobile phone number. Should your contact details not be up-to-date the Service Provider will not be liable to you in respect of any missed communications.
12. Yodlee Acknowledgement
12.1 The Customer acknowledges that in providing the Services, the Service Provider will require the services of third parties, and that such third party services may be integrated with the Services. This includes without limitation, certain services which is provided by Yodlee to the Service Provider (Yodlee Services), noting that the Yodlee Services are integrated into the Services. The Customer hereby confirms that it has read and understood this clause 12 and provides informed consent that the Service Provider can integrate or use the Yodlee Services, and any other services provided by third parties (Third Party Services) in providing the Services.
12.2 Under the Agreement between Yodlee and the Service Provider, the Service Provider is required to perform reasonable due diligence on each Customer (Due Diligence) prior to allowing the Customer to have access to the Services. The Customer agrees to provide the Service Provider with all information and assistance reasonably required by the Service Provider for the Due Diligence and agrees that the Service Provider can provide such information to Yodlee in order to satisfy the Due Diligence requirement.
12.3 As the Services contains the Yodlee Services and Third Party Services, the Customer further acknowledges and expressly provides informed consent that Yodlee and such other third parties:
(a) will have access to the Customer Data;
(b) can use the Customer Data to:
(i) provide and improve the Yodlee Services, Third Party Service and/or Services (as applicable);
(ii) create and use aggregated data (which is usage information and Customer Data that is de-identified) as permitted by law); and
(iii) for any purpose ancillary or associated with clause 12.3(b)(i) and 12.3(b)(ii),
13. Payment
13.1 The Customer must pay the Service Provider:
(a) the Fee; and
(b) any other amount payable to the Service Provider under this Agreement,
without set off or delay using the Payment Method and in accordance with clause 13.2.
13.2 For the avoidance of doubt, the Customer agrees and acknowledges that the Services are to be provided on a monthly recurring subscription basis and all Fees are payable monthly in advance. This means when the Customer “signs up” to be provided with the Services, they will be required to pay the Fee monthly in advance, this will occur by means of a recurring automatic debit on the Customer’s credit or debit card.
13.3 If any payment has not been made in accordance with the requirements of this Agreement, the Service Provider may (at its absolute discretion) immediately cease providing the Services.
14. Confidentiality
14.1 Subject to clause 14.2(b) and other provisions of this Agreement, each party must (and must ensure that its Personnel do):
(a) keep confidential; and
(b) not use or permit any unauthorised use of,
all Confidential Information.
14.2 Clause 14.1 does not apply where:
(a) the information is in, or comes into, the public domain (other than by a breach of this clause 14 by the relevant party);
(b) the relevant party has the prior written consent of the party that disclosed the Confidential Information;
(c) the disclosure is required by law;
(d) the disclosure is required in order to comply with this Agreement, provided that the party disclosing the Confidential Information ensures the recipient complies with the terms of this clause 14; and
(e) the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the party disclosing the Confidential Information ensures the adviser complies with the terms of this clause 14.
14.3 Each party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 14. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 14.
14.4 This clause 14 will survive the termination or expiry of this Agreement.
15. Intellectual Property Rights
15.1 A party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
15.2 The Customer grants to the Service Provider a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for the Service Provider to provide the Services to the Customer.
15.3 The Service Provider has the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, the Service Provider determines that the Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of the Service Provider or third parties, or has otherwise breached any applicable policies (for example our fair use policy).
15.4 This clause 15 will survive the termination or expiry of this Agreement.
16. Privacy
16.1 Each party and its Personnel agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that party or its Personnel in connection with the Services and this Agreement.
16.2 Details on how the Service Provider complies with the Privacy Act 1988 (Cth) and how it collects, discloses, holds or uses personal information is available in the Service Provider’s Privacy Policy as set out on the Service Provider’s Website or as provided to the Customer from time to time. The Service Provider reserves the right to amend its Privacy Policy as required from time to time.
16.3 The Service Provider will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.
16.4 The Customer warrants that it has obtained each of its Personnel’s informed consent for the Service Provider, its related bodies corporate, and their respective Personnel to use, store, manipulate or otherwise deal with the personal information contained in the Data.
16.5 The Customer must ensure that any collection, processing, use, disclosure and transfer by the Customer and its Personnel of personal information in connection with the performance of its obligations under this Agreement complies with all applicable privacy law and the privacy policy of the Customer.
16.6 The Customer must co-operate with any reasonable requests or directions of the Service Provider relating to the security, use, disclosure, and transfer of personal information, the Service Provider’s legal obligations relating to the personal information, complaints relating to the personal information and the rights of individuals to access and correct the personal information or opt out of receiving any communications from or on behalf of the Customer.
16.7 The Service Provider will retain Customer’s information for as long as Customer account is active or as needed to provide Customer services. Service Provider will retain and use information as necessary to comply with legal obligations, resolve disputes, and enforce agreements.
16.8 This clause 16 will survive the termination or expiry of this Agreement.
17. Representations and Warranties
17.1 General
Each party represents and warrants to each other party:
(a) it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
(b) no Insolvency Event has occurred in respect of it;
(c) this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
(d) the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it.
17.2 Service Provider
(a) The Service Provider warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.
(b) The Service Provider does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.
17.3 Repetition
Each party makes the representations and warranties in clause 17.1 on each day on which it is a party.
18. Indemnity and liability
18.1 The Service Provider is liable for the acts and omissions of all its Personnel as if they were done by the Service Provider.
18.2 Despite anything to the contrary (but subject to clause 18.3), to the maximum extent permitted by the law:
(a) the Service Provider’s maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed, in any calendar year, the total amount of Fees paid to Service Provider in the prior calendar year; and
(b) the Service Provider will not be liable to the Customer for: (i) any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data ); (ii) lack of access to or use of or inability to access or use the Service; (iii) any conduct or content of any third party on the Services; (iv) any content obtained from the Services; nor (v) unauthorised access, use or alteration of your transmissions or content,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
18.3. Clause 18.2 will not apply to the Service Provider’s Liability to the Customer under this Agreement for any liability which cannot be excluded or limited by applicable law, including:
(a) fraud or criminal conduct; or
(b) death or personal injury.
18.4 Despite anything to the contrary, to the maximum extent permitted by the law, the Service Provider will have no Liability, and the Customer releases and discharges the Service Provider from all Liability, arising from or in connection with any:
(a) failure or delay in providing the Services;
(b) breach of this Agreement; or
(c) misuse of the Services,
where caused or contributed to by any:
(d) an event of Force Majeure;
(e) a fault or defect in any item of the Customer Environment; or
(f) act or omission of the Customer or its Personnel.
18.5 The Service Provider uses third-party Service Providers to host the Services. The Service Provider will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of the Customer’s Systems, caused by any such third-party service provider.
18.6 The Customer agrees that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.
18.7 The Customer agrees to indemnify, and hold harmless, the Service Provider against all Liabilities and Claims arising out of or in connection with:
(a) any and all unauthorised use of the SaaS Service;
(b) Authorised Users access or use of the Services;
(c) injury to or death of any person caused by any act or omission by or on behalf of the Customer or its Personnel; and
(d) damage to any real or tangible property caused by any act or omission by or on behalf of the Customer or its Personnel.
18.8 This Clause 18 will survive the termination or expiry of this Agreement.
19. Term
19.1 The Term of this Agreement takes effect on and from the Effective Date and continues for the Initial Term, and thereafter indefinitely, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
20. Termination
20.1 The Customer may terminate this Agreement at any time by cancelling the monthly subscription to the Services via their customer account portal. For the avoidance of doubt, the Service Provider will not under any circumstances refund any portion of the Fees paid. As the subscription to the Services is on a recurring monthly basis, if the Customer terminates this Agreement at any time during the month for which the Fee has been prepaid, the Customer will still have access up to the last date for the period which has been prepaid. In order for the Customer to not incur the recurring monthly Fee for the Service, they Customer must terminate this Agreement at least 3 Business Days prior to the date on which their monthly subscription Fee is due to be debited.
20.2 The Service Provider may terminate this Agreement by giving at least 30 Business Days’ notice to the Customer if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within 30 Business Days of receipt of written notice from the Service Provider describing the breach and calling for it to be remedied.
20.3 The Service Provider may terminate this Agreement for convenience (and without the need to provide any reasons) by giving at least 10 Business Days’ notice to the Customer.
20.4 The Service Provider may terminate this Agreement immediately by giving written notice to the Customer where:
(a) an Insolvency Event occurs in relation to the Customer;
(b) the Customer commits a breach of this Agreement not capable of remedy; or
(c) breaches clause 5 (Licence Restrictions) or clause 10 (Prohibited Use).
20.5 The Service Provider may suspend overdue accounts without notice to the Customer.
21. Events Following Termination
21.1 Upon termination of this Agreement, the Service Provider will:
(a) immediately stop performing the Services;
(b) immediately stop placing orders for supplies or services required in connection with the performance of the Services; and
(c) immediately cease to provide access to the Software to the Customer, the Customer acknowledges that they will have no access to the Software as and from the termination date and that it is the Customer’s responsibility to ensure they print a copy of their Data before the termination date.
21.2 Upon termination of this Agreement, the Customer will immediately:
(a) cease and desist from any use of the Services;
(b) return to the Service Provider all property, including Confidential Information and Intellectual Property, in its possession that belongs to the Service Provider; and
(c) pay all Fees that are due and payable.
21.3 The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.
21.4 This clause 21 will survive the termination or expiry of this Agreement.
22. Subcontracting
The parties agree the Service Provider may engage subcontractors to perform the Services on its behalf.
23. GST
23.1 Taxable supply
If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
23.2 Adjustment events
If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
23.3 Payments
If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
23.4 GST terminology
The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
23.5 This clause 23 will survive the termination or expiry of this Agreement.
24. General
24.1 Notices
(a) A notice or other communication given under this Agreement must be:
(i) in writing, in English and signed by the sender; and
(ii) addressed and delivered to the intended recipient by prepaid post or email in accordance with the notice details last notified by the recipient to the parties.
(b) The Customer’s notice details are set out in the Customer’s account. The Service Provider’s notice details are set out on the Website. A party may change its notice details by written notice to the other parties, which, for the Customer, is by updating their Account, and for Service Provider, is by updating the Website.
(c) A notice or communication is taken as having been given:
(i) when left at a party’s current address for notices;
(ii) if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
(iii) if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
(d) This subclause will survive the termination or expiry of this Agreement.
24.2 Force Majeure
If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by reasons of Force Majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.
24.3 Waiver
Any failure or delay by a party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that party from exercising that power or right or any other power or right. A waiver must be in writing.
24.4 Powers, rights, and remedies
Except as provided in this Agreement or permitted by law, the powers, rights, and remedies of a party under this Agreement are cumulative and in addition to any other powers, rights and remedies the party may have.
24.5 Consents or approvals
Except as provided in this Agreement, a party may give, attach conditions to or withhold any consent or approval under this Agreement at its sole and absolute discretion. A party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
24.6 Assignment
No party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other parties. Any purported dealing in breach of this clause 24.6 is of no force or effect.
24.7 Further assurance
Each party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it. This subclause will survive the termination or expiry of this Agreement.
24.8 Costs and expenses
Each party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation, and execution of this Agreement and any document relating to it.
24.9 Relationship of parties
(a) This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.
(b) Nothing in this Agreement gives a party authority to bind any other party in any way.
24.10 Links to Third parties
(a) The Services may contain links to third-party web Websites or services that are not owned or controlled by the Service Provider.
(b) The Service Provider has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web Websites or services. The Customer further acknowledges and agree that the Service Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web Websites or services.
24.11 Independent legal advice
Each party acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
24.12 Severance
(a) If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
(b) If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
24.13 Entire agreement
The Agreement contains the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
24.14 Amendment
This Agreement may only be amended by written document executed by all parties.
24.15 Cumulative Rights
(a) The rights arising out of this Agreement do not exclude any other rights of either party.
(b) Each indemnity in this Agreement is a continuing obligation that is separate and independent from the other obligations of the parties under this Agreement.
(c) A party is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Agreement.
24.16 Governing law and jurisdiction
This Agreement is governed by the laws of South Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in South Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
