SaaS Agreement and Terms

Definitions

In this Agreement:

• Agreement: means this software as a service (SaaS) agreement, and includes the Key Details on page iii, and any schedules.
• Australian Privacy Principles: has the meaning ascribed to that term in the Privacy Act 1988 (Cth).
• Business Day: means any day which is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
• Commencement Date: means the date specified in Item 3.
• Confidential Information: means the terms of this Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, this Agreement. Stackbond's Confidential Information includes Intellectual Property owned by Stackbond (or its licensors), including the Stackbond Software. The Client's Confidential Information includes the Data.
• Claim: means any claim, demand or cause of action whether arising in contract, tort, under statute or otherwise.
• Data: means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Stackbond Software.
• Force Majeure: means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or a lack of funds for any reason.
• Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.
• Key Details: means the part of this Agreement titled as such, commencing on page iii of this Agreement.
• Loss: means any liability, cost or expense suffered or incurred by a party (whether actual or contingent).
• Objectionable: includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
• Permitted Users: means those personnel of the Client who are authorised to access and use the Services on the Client's behalf in accordance with clause 3.3.
• Personal Information: has the same meaning given to that term in the Privacy Act 1988 (Cth).
• Related Services: means any related service described in Item 5, or such other services that Stackbond agrees to supply to the Client from time to time.
• SaaS Service: means the service described in Item 4, as updated and amended from time to time.
• Services: means the SaaS Service and any Related Services.
• Service Fee: means the fee(s) specified in Item 6, as amended from time to time in accordance with the terms of this Agreement.
• Stackbond Software: means the software supplied by Stackbond that is used to provide the SaaS Service.
• Underlying Systems: means the Stackbond Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

Interpretation

In this Agreement:

• words importing the singular include the plural and vice versa;
• words importing any gender include all other genders;
• words importing persons include corporations, all bodies and associations corporate or unincorporate and vice versa;
• a reference to an "Item" is a reference to an item in the Key Details;
• any agreement, warranty, representation, obligation or liability which binds or benefits 2 or more persons binds or benefits those persons jointly and severally;
• headings are included for convenience only and will not affect the interpretation and construction of these terms;
• all references to dates and times are to times in Melbourne, Victoria;
• any reference to "includes" or "including" means "includes without limitation".

Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.

Provision of Services

Stackbond must use its reasonable efforts to provide the Services:

• in accordance with the Agreement;
• exercising reasonable care, skill and diligence; and
• using suitably skilled, experienced and qualified personnel.

Non-exclusive

Stackbond's provision of the Services to the Client is non-exclusive. Nothing in the Agreement prevents Stackbond from providing the Services to any other person.

Availability

Subject to clause 2.3(b), Stackbond will use reasonable efforts to ensure the SaaS Service is available during normal business hours on any Business Day. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Stackbond will use reasonable efforts to notify the Client in advance of any unavailability.

Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. Stackbond does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Stackbond may cease to make available that feature to the Client. To avoid doubt, if Stackbond exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.

Additional Related Services

Stackbond may, from time to time, make available additional services to supplement the SaaS Service.

At the request of the Client and subject to the Client paying the applicable Service Fee(s), Stackbond may agree to provide to the Client an additional Related Service on the terms of the Agreement.

Usage

The Client and its personnel must:

• use the Services in accordance with the Agreement solely for the Client's own internal business purposes and lawful purposes; and
• not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

Access

When accessing the SaaS Service, the Client and its personnel must:

• not impersonate another person or misrepresent authorisation to act on behalf of others or Stackbond;
• correctly identify the sender of all electronic transmissions;
• not attempt to undermine the security or integrity of the Underlying Systems;
• not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems;
• not attempt to view, access or copy any material or data other than that which the Client is authorised to access;
• neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right or is Objectionable, incorrect or misleading; and
• comply with any terms of use communicated to it by Stackbond.

Personnel

• No individual other than a Permitted User may access or use the SaaS Service.
• The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide Stackbond with the Permitted User's name and other information as reasonably required.
• The Client must procure each Permitted User's compliance with the relevant clauses and any other reasonable condition notified by Stackbond.
• A breach of any term of the Agreement by the Client's personnel is deemed to be a breach of the Agreement by the Client.

Authorisations

The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.

Access to Data

• The Client acknowledges that Stackbond may require access to the Data to exercise its rights and perform its obligations under the Agreement.
• The Client must arrange all consents and approvals necessary for Stackbond to access the Data as described.

Analytical Data

The Client acknowledges and agrees that Stackbond may use Data and information about the Client's use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data) for Stackbond's internal research and product development purposes. Stackbond may supply Analytical Data to third parties, and title to Analytical Data is and remains Stackbond's property.

Agency

• To the extent Data contains Personal Information, Stackbond is acting as an agent of the Client for the purposes of applicable privacy law.
• The Client must obtain all necessary consents from relevant individuals to enable Stackbond to collect, use, hold and process that information in accordance with the Agreement.

Backups

While Stackbond will take standard industry measures to back up all Data stored using the Services, the Client agrees to keep a separate back-up copy of all Data uploaded to the SaaS Service.

International storage of Data

The Client agrees that Stackbond may store Data (including any Personal Information) in secure servers in overseas territories and may access that Data in those countries from time to time.

Indemnity

The Client indemnifies Stackbond against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Stackbond's solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party or is Objectionable, incorrect or misleading.

Payment of Service Fee

• The Client must pay the Service Fee to Stackbond in consideration for the provision of the Services.
• The Service Fee will be payable monthly or annually (as agreed between the parties) and in advance of any provision of the Services.

Payment Terms

• The Client must pay the Service Fee in accordance with Stackbond's payment terms.
• Stackbond may by notice in writing set such payment terms as it deems fit (acting reasonably).

Review Date

• Stackbond may review the Service Fee payable under this Agreement annually on 1 July of each year.
• Upon completion of a Service Fee review, Stackbond must notify the Client of the new Service Fee payable as and from 1 July of that year.

Interest

• Stackbond may charge interest at a rate of 15% per annum on any unpaid portion of the Service Fee.
• Any interest charged will be calculated from the date that payment fell due until the date that payment is made, and will accrue daily and compound monthly.

Ownership

• Title to, and all Intellectual Property Rights in, the Services, and all Underlying Systems is and remains the property of Stackbond (and its licensors).
• Title to, and all Intellectual Property Rights in, the Data remains the property of the Client. The Client grants Stackbond a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data.

Third party rights

Stackbond indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client's use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party's Intellectual Property Rights.

Confidentiality obligations

Each party must keep any Confidential Information of the other party in strict confidence, take all reasonable and necessary precautions to prevent the disclosure of any Confidential Information, and not copy, use or allow any person to copy or use, the Confidential Information of the other party for any purpose other than the purpose of the performance of its obligations.

Privacy

• The parties must deal with any Personal Information in accordance with the Australian Privacy Principles and any other applicable law.
• The parties must take reasonable steps to prevent the misuse, unauthorised access or wrongful disclosure of any Personal Information.
• Stackbond may from time to time implement a privacy policy and post that policy on its website. A breach of any such privacy policy will be deemed to be a material breach of this Agreement.

No warranty

• Except as expressly set out in this Agreement, Stackbond makes no warranty whatsoever in relation to the Services.
• Stackbond will not be liable for any Loss arising out of or connection with the provision of the Services to the Client or the Client's use of the Services.

Limitation of Liability

• Stackbond's liability for any Claim or Loss arising out of or in connection with this Agreement will be limited to a refund of any amounts paid by the Client for the Services.

Termination by notice

• A party may terminate this Agreement at any time by serving notice on the other party of its intention to do so.
• The notice must be in writing and specify the date upon which the Agreement will end, which must be no less than 30 days from the date of the notice.

Immediate termination

Either party may, by notice to the other party, immediately terminate the Agreement if the other party breaches any material provision of the Agreement and the breach is not remedied within 10 days of the receipt of notice.

Consequences of termination

• Termination or expiry of the Agreement does not affect either party's rights and obligations that accrued before that termination or expiry.
• On termination or expiry of the Agreement, the Client must pay all Service Fees for Services provided prior to that termination or expiry.
• At any time prior to one month after the date of termination or expiry, the Client may request a copy of any Data stored using the SaaS Service, provided that the Client pays the Stackbond's reasonable costs of providing that copy.

Force Majeure

• Where Force Majeure prevents or delays either party from performing any obligation under this Agreement, that obligation is suspended as long as the Force Majeure subsists.
• If any Force Majeure continues for a period of 60 days or more, either party may terminate this Agreement immediately by written notice to the other.

Notice

Any notice or other communication to or by a party to this Agreement must be in legible writing and in English and sent to the address of the relevant party as specified (or such other address made known to the sender by notice from time to time).

Governing law and jurisdiction

This Agreement must be governed by and construed in accordance with the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of that State.

Variation

No change or modification of this Agreement will be valid unless made in writing and signed by both parties.

Whole agreement

This Agreement is the whole agreement between the parties concerning the subject matter. It replaces any prior agreement, arrangement or understanding concerning the subject matter.

Assignment

No party may assign the burdens or benefits of this Agreement without the consent of the other party.

Waiver

• The failure of either party at any time to require performance by the other party of any provision of this Agreement does not affect the party's right to require the performance at any time.
• The waiver by either party of a breach of any provision may not be held to be a waiver of any later breach of the provision or a waiver of the provision itself.