THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE OF OUR SERVICES AND/OR PRODUCT. IF YOUR SUBSCRIPTION IS OR INCLUDES A FREE TRIAL, THIS AGREEMENT ALSO GOVERNS YOUR FREE TRIAL OF THE SERVICES AND/OR PRODUCT.

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

BASIC TERMS

You acknowledge that the Services incorporate our sensitive trade secrets and other knowledge that is commercially valuable. Accordingly, You agree that You must not enter into this Agreement, or access the Services, if You or Your business is in any way involved in developing, implementing or delivering any products or services that are similar to or competitive with the Services.
Each party acknowledges that the Confidential Information provided by the other party is provided on a confidential basis and may contain sensitive commercial information and/or trade secrets and other knowledge that is commercially valuable. The rights and obligations of each party with respect to the other party’s Confidential Information are set out at clause 11 below.
You must not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, public disclosure or competitive purposes.
This Agreement supersedes any prior agreement, arrangement or understanding between You and Us in relation to its subject matter.
We provide Product and Services to customers and businesses in North America, Australia, New Zealand, the United Kingdom and the rest of the world. You acknowledge that features, functions, units of measurement and terminology may differ between countries, and features and/or functionality designed for one geographical territory or country may not suit or be available for use in or in respect of other countries.

This Agreement was last updated on 24 Jan 2017. It is effective between You and Us as of the date of Your acceptance of this Agreement.

DEFINITIONS

In this Agreement unless the context otherwise requires:

“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us. Order Forms shall be deemed incorporated herein by reference.
“Product” means the functionality that is made available to You by Us, as purchased by You under an Order Form. Unless otherwise stated in the Order Form, the Product shall be as generally described in the Product Specification. More limited functionality may be provided to You pursuant to a free trial.
“Product Specification” means the description of the Product as set out in the document titled “Product Specification” available at http://stack.aero/product-specification
“Services” means the services performed by Us or one of our Partners as described in the applicable Order F
“We”, “Us” or “Our” means Charter Intelligence Pty Ltd, trading as “STACK.aero”.
“You” or “Your” means the company or other legal entity that is entering into this Agreement with Us.
“Your Data” means all electronic data or information submitted by You to Us through the Platform.
“Platform” means the Salesforce.com, Force.com, APEX, VisualForce, and Microsoft infrastructure through which the Product and Services are delivered or made available to You.
“User” means a specific person authorised by You to use access and use the Product in accordance with the terms of this Agreement.

PRODUCT LICENSING

2.1 Provision of Product Licenses

We shall make the Product available to You pursuant to the terms of this Agreement and the applicable Service Orders, as detailed in the relevant Order Forms, for the duration of the applicable subscription term. Service Orders and Order Forms are not binding upon Us, until We have notified You in writing (by email or otherwise) that We have accepted them. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2 User Subscriptions

Unless otherwise specified in the applicable Order Form: (i) Product is purchased as User subscriptions and may be accessed by no more than the specified number of individual Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same per-User pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Product.
You acknowledge and agree that Your Purchase of Products or Services under this Agreement do not transfer to You, or create for Your benefit, ownership of any intellectual property rights or trade secrets in any of Our Products or Services. Any rights granted to You under this Agreement in respect of our Products and Services shall be construed to be a non-transferable, non-sublicensable, non-exclusive, revocable licence to access or use the relevant Products or Services only: (a) in and from the territories specified in the applicable Order Form; and (b) for the purposes specifically authorised in this Agreement.

2.3 Platform Licensing

You acknowledge that:

When the Product is used, each user will be provisioned access and authentication via the embedded licensing arrangement We have with Salesforce.com.
No license is given by Us or by Salesforce.com under this Agreement for the installation of third-party applications, or access to standard objects not defined in the Product Specification.
Some Users may from time-to-time have access to standard objects beyond those described in the Product Specification, and are hereby expressly and contractually prohibited from utilising the features and functionality of any Salesforce.com object not described in the Product Specification.
You must not develop any applications for Your use using or incorporating any Product or Service delivered under this Agreement, without the prior written approval from Us.

2.4 Platform Limitations

Product usage and Service availability may be subject to other limitations, such as, for example, limits on data storage space, and the number of “API” calls (Application Programming Interface) You are permitted to make. Any such limitations are detailed in the applicable Order Form, and may be subject to changes from time-to-time, as notified by Us to You. Such changes shall take effect on the next annual renewal of the relevant subscription.

2.5 Use of Materials

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

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

2.6 Shared Org Limitations

The use of a ‘Shared Org’ (defined by Salesforce.com as ‘Cross-Organisation Data Sharing’) is expressly prohibited and any use of a Shared Org by You within the Platform will constitute a material breach of this Agreement, unless the use by You of a Shared Org is expressly permitted writing by Us.

2.7 Additional features and functionality

Any additional features or functionality (not included in Our standard Product) such as custom fields, custom objects or components which are not part of the standard package or regular system upgrades, will only be provided if: (a) agreed in an Order Form; (b) paid for by You; and (c) approved by Salesforce.com.

2.8 Third party applications

You acknowledge and agree that You must not install any Salesforce.com or other third-party applications (where this would or could have an impact on the functionality, reliability, performance or availability of the Product), without prior written approval from Us. Our approval may also be subject to Us being able to obtain approval from Salesforce.com.

FEES AND PAYMENT

3.1 Fees

You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, fees are based on Product purchases and not actual usage, Order Forms are non-cancellable, fees paid by You are non-refundable, and the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. The start date of Your usage of the Product (as stated in the applicable Order Form) will represent the start of the license billing period except as otherwise specified in the Order Form. Billing will be initiated from the beginning of Your Start Date for ALL Users specified in the Order Form, irrespective of when each User actually uses the Product. Your obligation to pay the fees for Product purchased is not in any way contingent upon the progress or completion of any related or unrelated Services that We are performing for You, unless otherwise explicitly stated in the applicable Order Form.

3.2 Invoicing and Payment

If You provide credit card information to Us, You authorize Us to charge such credit card for all Products purchased pursuant to any Order Form for the duration of the subscription term. Term length will be stipulated on the Order Form along with billing periods. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges must be paid within 30days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

3.3 Overdue Charges

If any charges are not received by Us from You by the due date, then at Our discretion: (a) such charges will accrue late-payment interest at the rate of 1.5%a. of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section3.2 (Invoicing and Payment).

3.4 Suspension of Service and Acceleration

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

3.5 Formal Collection of Payment.

You hereby acknowledge that We hold the right to pursue payment collection through formal debt collection third parties (or assign our rights under this Agreement to any third party, by notice in writing to You) if any amount owing by You under this or any other agreement for Our Product or Services is 30 or more days overdue and no effort to resolve a payment dispute has been made (or efforts have been made, but full payment has still not been received by Us within 14 days of the commencement of those dispute resolution efforts). All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including; third-party collection fees, and interest charges identified in clause 3 (Overdue Charges).

3.6 Taxes

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

PROPIETARY RIGHTS

4.1 Reservation of Rights

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

4.2 Restrictions

You shall not: (i) permit any third party to access the Products or Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Products or Services, (iii) copy, frame or mirror any part or content of the Products or Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Products or Services, or (v) access the Products or Services in order to: (a) build a competitive product or service, or (b) copy any features, functions or graphics of any part of the Products or Services.

4.3 Your Data

As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. We may however disclose Your registration information to Salesforce.com in connection with this Agreement, and You acknowledge that your registration information may be used in accordance with their privacy policy, which is available to You at http://www.salesforce.com/company/privacy/ .

4.4 Suggestions

We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Products and Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Products or Services.

REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

5.1 Representations and Acknowledgements

5.2 Disclaimers

Except as expressly provided herein, or to the extent of any implied warranties that cannot be lawfully excluded, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and to the maximum extent permitted under applicable law, each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Where applicable law does not allow such implied warranties to be excluded, but does permit remedies for breach of warranty to be limited, the parties agree that our liability for breach of such warranty shall be limited to an obligation to re-supply the products, or re-perform the services, that did not comply with the applicable implied warranty. Content, beta and free trial products and services are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.

MUTUAL INDEMNIFICATION

6.1 Indemnification by Us

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

6.2 Indemnification by You

You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Product in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We: (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance that You request, at Your expense.

LIMITATION AND EXCLUSION OF LIABILITY

7.1 Limitation of Liability

Neither party’s liability with respect to any single incident arising out of or related to this agreement will exceed the amount paid by customer hereunder in the 12 months preceding the incident. Further, in no event will either party’s aggregate liability arising out of or related to this agreement exceed the total amount paid by customer hereunder. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. However, the above limitations are in addition to and will not limit customer’s payment obligations under section 3(fees and payment).

7.2 Exclusion of consequential and related damages

In no event will either party have any liability to the other party for any lost profits, revenues, damage to reputation or for any indirect, special, incidental, consequential or punitive damages, whether an action is in contract, tort (including negligence) or otherwise, and regardless of the theory of liability, even if a party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.

7.3 Your data

You acknowledge that neither Salesforce.com or Us shall be responsible for the privacy, security or integrity of your data.

7.4 Data Retention

We retain processed data in order to continue provision of our Services to you in connection with the Product. This data is stored in the Microsoft Azure cloud infrastructure, and is subject to the “Online Services Terms”, “Service Level Agreement” and other legal and data security provisions of this Microsoft Infrastructure available at https://azure.microsoft.com/en-us/support/legal/. Your Data is stored in a database instance which is dedicated to you.

DISCLOSURE

8.1 Market Disclosure

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

TERM AND TERMINATION

9.1 Term of Agreement

This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

9.2 Term of Purchased Subscriptions

The term of each subscription shall be as specified in the applicable Order Form and is subject to any special terms and conditions specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 45 days before the end of the relevant subscription term. The per-User pricing during any automatic renewal term will be the same as applied during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your pricing is fixed, We will not increase Your per-User Product fees for that period of time.

9.3 Termination

If You:

breach any of the terms of this Agreement and do not remedy this breach within 30 days after receiving notice of the breach, if the breach is capable of being remedied;
breach any of the terms of this Agreement and the breach is not capable of being remedied; or
You become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become bankrupt, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,

Then We may elect to:

suspend or terminate this Agreement and Your use of the Services and Products and You will remain liable for: (i) damages suffered or incurred by us; and (ii) any accrued charges and amounts in respect of periods of time prior to termination, and You will immediately cease to have any rights under this Agreement.

9.4 Refund or Payment upon Termination

Upon termination of this Agreement, We will not provide, and You are not entitled to receive, any refund for any amounts prepaid under any Order Form, regardless of the reason or cause for such termination. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

9.5 Obligations of Salesforce.com

You acknowledge that:

You are contracting solely with Us and are not entering into any contractual relationship (under this Agreement) with Salesforce.com; and
If We cease business or provision of the Services, Salesforce.com is not under any obligation to: (i) continue to provide the Product or any Services to You; (ii) provide You with any refund; or (iii) take over Our obligations or liability to You under this Agreement.

9.6 Return of Your Data

Upon request by You made within 30 days after the effective date of termination or expiration of Your relevant subscription under the applicable Order Form, We will make available to You for download a file of Your Data in comma separated value (.csv) format, relating to the expired or terminated subscription. After such 30-day period, We shall have no obligation to maintain or provide any such data and may thereafter, unless legally prohibited, delete all such data in Our systems or otherwise in Our possession or under Our control.

9.7 Surviving Provisions

Sections 3 (Fees and Payment), 6 (Mutual Indemnification) and 7 (Limitation of Liability) will survive any termination or expiration of this Agreement.

PRODUCT SUPPORT

10.1 Overview

You will receive Support Services for the Product as detailed in the Order Form for the duration of the term under the applicable Order Form. In all cases, Your support requests must be submitted via email and only elevated to telephone communication when initiated by Our Customer Support team members. All support enquiries should initially be directed to support@stack.aero for our team to acknowledge and respond appropriately.

10.2 Important Exclusions relating to the Salesforce.com Platform

You acknowledge that we are not responsible for, and are unable to provide, support services (including for example error corrections, upgrades and technical information) that relate to the Salesforce.com platform. We understand that Salesforce currently (and may in the future) include free support for all customers using the Salesforce.com platform and we suggest that You seek to utilise this service by creating a support ticket with Salesforce.com for any issues relating to the Salesforce.com platform. Salesforce Free Support may include case creation/response via their customer portal (available via the HELP menu in the Salesforce.com application), the ability to submit an unlimited number of cases, and 24/7 access to the Salesforce online support portal, which features searching capabilities on topics covering functional and administrative areas of its platform.
Examples of topics that could be directed to Salesforce.com are:
- Workflow rules, validation rules from standard objects other than those outlined in the Product Specification.
- Creation and management of email communication templates
- Creation and management of new users, records, profiles, roles and hierarchies
- Creation of Reports and Dashboards
To access Salesforce.com’s Customer Support, visit: http://www.salesforce.com/services-training/customersupport/

10.3 Summary of Services Offered and included under this Agreement

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

10.4 Support Response Times

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

10.5 Support Request Procedures

Your requests for support services must be sent by email to: support@stack.aero and shall include the word ‘Support’ in the subject line of the email.
Our customer service team will respond to Support Request as soon as available within support hours in one of the following ways:
- Email Response: The provision of general information and troubleshooting, problem determination, isolation and verification details as well as instructed solutions via email reply.
- Telephone Response: Our team member will elevate a support request to telephone communications if direct verbal communications are required to find a suitable solution, investigate and further isolate issues and personally instruct users through solution processes.
From time to time one or more of our customer service team members may require access to Your Salesforce.com login credentials, in order to provide appropriate support. This access shall require one or more of Your Users to grant login access to our support team, following the documentation outlined at http://help.salesforce.com. We shall not access Your Data or Your Salesforce.com account without Your prior express approval, which shall be considered granted if and when Your Users share their login credentials with Us.

10.6 Resolution

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

10.7 High-level Elevation and Consulting

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

NONDISCLOSURE OBLIGATION

11.1 Confidential Information

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

11.2 Exceptions

This Agreement imposes no obligation upon Recipient with respect to Discloser’s Confidential Information which Recipient can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by Recipient without an obligation to maintain its confidentiality prior to receipt from Discloser; (b) is or becomes generally known to the public without violation of this Agreement; or (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality. To the extent Recipient may be required to disclose Confidential Information in a legal proceeding, Recipient may make such disclosure; provided that Recipient: (d) notifies Discloser of such requirement prior to disclosure; (e) makes diligent efforts to avoid and limit disclosure; (f) seeks confidential treatment of the information so required to be disclosed; and (g) complies with any protection order or equivalent.

11.3 Confidentiality

Recipient must keep secret and confidential all Confidential Information of Discloser and must not use or disclose any of Discloser’s Confidential Information without the prior written consent of Discloser, except to the extent necessary to disclose Confidential Information for the purposes of carrying out an obligation or responsibility of Recipient under this Agreement, provided that the person to whom the Confidential Information is disclosed is subject to obligations of confidentiality offering no less protection (to Discloser) than as set out in this clause 11.

11.4 Acknowledgment

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

(a) not be capable of reasonable or adequate compensation in the form of an award of damages; and/or
(b) cause irreparable injury to the Discloser.

11.5 Personnel

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

11.6 Return of materials

Subject to clause 11.7, Recipient must on demand by Discloser return (and must cause Recipient’s personnel to return) to Discloser all copies (including partial copies) of Discloser’s Confidential Information.

11.7 Retention for quality assurance purposes

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

11.8 Terms of Agreement Confidential

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

11.9 Public announcements

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

MISCELLANEOUS

12.1 Relationship Management

You agree that Your primary contact for Your contact with Us will be Your “Relationship Manager” named in the applicable Order Form.

12.2 Compliance with Laws

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

12.3 Assignment

You must not assign or novate any of Your rights or obligations under this Agreement without Our prior written consent. Any purported assignment or novation by You without Our prior written consent is of no effect.

12.4 Governing Law

This Agreement shall be governed by the laws of New South Wales, Australia. All disputes relating to this Agreement or its subject matter must be resolved in the courts and court registries located in New South Wales.

12.5 Variation

We reserve the right to vary and update these terms from time to time during the period of Your subscription, and shall provide you with at least 30 days’ prior notice of any updates to these terms. Your continued use of the Product or Service beyond the effective date of the updated terms shall constitute your acceptance of the updated terms.

12.6 Entire agreement

This Agreement constitutes the entire agreement between You and Us in respect of the Product and Services. No Order Form or other ordering document that purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between You and Us. This Agreement may be amended only by a written document executed by a duly authorised representative of You and Us.

12.7 Force majeure

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

12.8 Severance and waiver

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

12.9 Limitation of actions

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

12.10 No third-party rights

You acknowledge that:

the only parties to this Agreement are You and Us;
no rights are granted by Us to any third party associated with You; and
Our obligations and responsibilities under this Agreement are enforceable only by You (and for the avoidance of doubt, no enforcement action, injunction or claim for damages may be commenced or continued against Us by any third party associated with You).

12.11 Disparaging Statements

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

12.12 Transactions

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

12.13 Independent contractors

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

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