License Terms

Terms and Conditions

This Agreement will continue for the Term and is entered into between us and you, together the Parties and each a Party.

Background

1. You are a business which is interested in learning more about your financial crime risk profile, compliance with selected obligations and what you can do to uplift your existing processes and systems to improve your financial crime risk management.
2. We have created a cloud-based solution, which we can provide to you as a service, which allows you to do this.
3. This Agreement sets out the terms on which we will provide these services to you.

1. Services

1. In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

2. Commencement

1. We will commence the provision of the Services within a reasonable time after the later of:
   1. the Commencement Date;
   2. to the extent the Fees are required in advance, we receive payment in full of the Fees; and
   3. you providing us with any information that we require in order to provide the Services to you (for example, the names of any Authorised Users and their email addresses, which we need to set up the Accounts).

3. SaaS Services Licence

1. Subject to your compliance with the terms of this Agreement, we grant you (and any Authorised Users) a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the SaaS Services for Purpose and Term (Licence).

4. Restrictions on use

1. You must not (and must ensure that any Authorised Users do not) access or use the SaaS Services except as permitted by the Licence and you must not and must ensure that any other person (including an Authorised User) does not:
   1. use the SaaS Services in any way that breaches any applicable Laws or infringes any person's rights, including Intellectual Property Rights (and privacy rights);
   2. use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
   3. introduce malicious programs into our hardware and software or Systems, including viruses, worms, trojan horses and e-mail bombs;
   4. allow others to access or use your/their Account, password or authentical details;
   5. continue to use the SaaS Services after termination of their employment and/or relationship with you;
   6. use the SaaS Services to carry out security breaches or disruptions of a network. This includes accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
   7. use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the SaaS Services;
   8. use the SaaS Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of members or suppliers;
   9. use the SaaS Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; and
   10. send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person's privacy (such as by way of identity theft or "phishing").

5. Accounts

1. In order to set up Accounts or you and each Authorised User to access and use the Services, including the SaaS Services, you will need to provide us with certain information (for example, names and email addresses).
2. You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.
3. It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account and all activity by any Authorised User on their Accounts, and for ensuring that any activities on any Accounts comply with this Agreement.
4. We are not responsible for the management or administration of your Account or your Authorised Users.

6. Authorised Users

1. You agree that the Licence permits you to access and use the SaaS Services in accordance with the number of Authorised Users, as set out in the Schedule (see “Services”).
2. You may, at any time, request an increase in the number of Authorised Users by submitting this request in writing to us. We may, in our sole discretion, agree to such request subject to you agreeing to any proposed increase in the Fees.

7. Access and availability

1. We agree to use commercially reasonable endeavours to ensure the SaaS Services available and accessible during the Term.
2. During the Term, from time to time, we may perform scheduled and emergency maintenance and updates in relation to the SaaS Services. You agree that access to, or the functionality of all or part of the SaaS Services, may need to be suspended for a time in order for us to do this.
3. We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the SaaS Services.

8. Additional Services

1. You may request Additional Services, including support and assistance on a consultancy basis or bespoke customisation to the scope or functionality of the Services, by providing written notice (including by email) to us.
2. We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for us to undertake the Additional Services.
3. If you agree to the scope of services, proposal or statement of work (as applicable), for the Additional Services, then we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.

9. Updates, fixes and variations to the Services

1. You agree that we may make changes to the SaaS Services at any time without your consent, provided those changes do not substantially and adversely affect your use and enjoyment of the SaaS Services.By way of example, a change that would substantially or adversely affect your use and enjoyment of the SaaS Services:

1. 1. would include discontinuation of a key feature that you were relying on and entered into the Agreement on the basis of; and
   2. would not include an adjustment to the solution or one or more algorithms, which results in you obtaining a different result or outcome when using and enjoying the SaaS Services.
2. In relation to changes to the SaaS Services that would substantially and adversely affect your use and enjoyment of the SaaS Services (or an Authorised User's), we agree to:
   1. not make such changes until after the Initial Term; and
   2. provide you with the details of any such change at least 90 days prior to the change taking place.
3. On receiving notice under clause 2(b), you may choose to terminate this Agreement in accordance with clause 27.2(b)(2).

10. Compliance is a moving target

1. You agree and acknowledge that while you may have achieved a certain compliance rating or outcome through using our Services on one day or at a particular time, this does not mean (and we make no promises or representations in relation to), you being able to obtain the same result again.
2. The reason for this, is that compliance obligations (and the way we assess compliance) is constantly evolving and improving. Adapting our Services to take this into account, is part of the benefit that we provide to you.

11. Variations to the Fees

1. You agree that we may vary the Fees by providing written notice to you of such variation and the new Fees will take effect on and from the end of the then Term and prior to the next automatic extension (in accordance with the “Term” item in the Schedule).
2. If you do not agree to any Fee variation, you may terminate this Agreement at the end of the then Term and prior to the next automatic extension, by providing notice as set out in the “Term” item in the Schedule.

12. Viruses and Defects

1. We agree to use reasonable commercial efforts to supply the Services free from defects and viruses. We further agree to, where this is commercially feasible, use reasonable commercial endeavours remediate any such issues within a reasonable time and as we become aware of them. If you become aware of any issues during the Term, please notify us.
2. The remediation in clause 1 will not apply to Third Party Inputs (for example, to issues in relation to Microsoft Azure).

13. Third Party Inputs

1. You agree that the SaaS Services may include Third Party Inputs that interface, or interoperate, with the SaaS Services, including third party software or services and that the provision of the SaaS Services may be contingent on, limited to or impacted by, Third Party Inputs (for example, Microsoft Azure which enables hosting).
2. You must comply with our instructions and directions, whether written or verbal, in relation to use of any Third-Party Inputs. Where we provide you with any terms and conditions for use of these Third-Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.

14. Our Obligations

1. We represent, warrant and agree:
   1. that we are properly constituted and have the right and authority to enter into this Agreement;
   2. that we will provide the Services in accordance with all applicable Laws; and
   3. that we will use reasonable efforts to ensure all of our obligations under this Agreement will be carried out:
      1. by suitably competent and trained Personnel; and
      2. in an efficient and professional manner; and
   4. the following:
      1. we have legal authority to grant you the Licence;
      2. all pre-existing Intellectual Property Rights in the Services (with the exception of the property rights in any Third-Party Inputs) will be owned or held by us; and
      3. the provision of the Services does not and will not infringe any other person’s Intellectual Property Rights.
2. We further agree:
   1. to use reasonable commercial endeavours to update the SaaS Services (including any content provided by us through the SaaS Services) to take into account changes to compliance requirements (including legislative requirements) on a timely basis; and
   2. that the Services will operate and be provided in accordance with this Agreement (including any Specifications).

15. Your Obligations

1. You agree:
   1. to comply with this Agreement, our reasonable requests or requirements, and all applicable Laws; and
   2. to provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at Law, in a timely manner;
   3. that you have reviewed and understand the terms of this Agreement (including our Privacy Policy), and will use the Services in accordance with them; and
   4. that in entering into this Agreement, you have not relied upon any representation, warranty or inducement by us nor is any representation, warranty or thing made or done by us to be inferred, incorporated or implied into this Agreement;
   5. to notify us of any breach or suspected breach of this Agreement by you (or an Authorised User), within 48 hours of becoming aware or any such breach or suspected breach;
   6. you are responsible for all users using the Services, including your Personnel and any Authorised Users;
   7. we may use third party service providers to integrate with the Services or to host the SaaS Services. If the providers of third-party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
   8. the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services; and
   9. we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel.
2. You represent, warrant and agree that:
   1. you have the legal capacity to enter into a legally binding agreement;
   2. there are no legal restrictions preventing you from entering into this Agreement;
   3. all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
   4. you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless such purposes are expressly stipulated in this Agreement;
   5. you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;
   6. the provision of the Services may be contingent on, or impacted by, Third Party Inputs;
   7. the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent. For the avoidance of doubt, this clause does not operate to prevent the disclosure of any Customer Data (which includes the outputs produced or generated through using the Services), just access to the Services themselves;
   8. you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;
   9. the Services and any associated programs and files at are used at your own risk;
   10. any information, advice, material, work and services (including the Services and any reports produced as part of these Services) provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice and is relied on at your own risk;
   11. you will inform us if you have reasonable concerns relating to our provision of the Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve these concerns;
   12. you are not and have not been the subject of an Insolvency Event;
   13. if applicable, you hold a valid ABN which has been advised to us;
   14. if applicable, you are registered for GST purposes; and
   15. you have reviewed this Agreement, including our Privacy Policy, and you understand them and will use the Services in accordance with them; and
   16. you have all hardware, software and services which are necessary to access and use the Services (other than those required to be provided by us under this Agreement).
3. This clause 15 will survive termination or expiry of this Agreement.

16. Payment

1. You agree to pay us the Fees, all pre-approved expenses, and any other amounts payable to us under this Agreement, in accordance with the Payment Terms.
2. If any payment has not been made in accordance with the Payment Terms, the amount becomes a debt due and immediately payable to us and we may (at our absolute discretion) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so.
3. If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
4. Subject to your Statutory Rights and to the maximum extent permitted by law, all amounts paid by you for the Services (including the Fees) are non-refundable. You agree that this is fair and reasonable on the basis that it is possible for you to obtain the value of the license within a short period of time.

17. Privacy

1. You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
2. You must, and must ensure that your Personnel and Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws (Privacy Laws) applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
3. Without limiting this clause 17, you may only disclose Personal Information in your control to us, if:
   1. you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement;
   2. you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and
   3. where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.
4. We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement and in accordance with any applicable Laws (and our Privacy Policy).

18. Security

1. We agree to use reasonable commercial endeavours to implement and maintain industry standard physical, technical and administrative security measures designed to protect Customer Data from unauthorised access, destruction, use, modification, or disclosure.

19. Security Incidents and data breaches

1. If either Party becomes aware of or reasonably suspects that a security incident has occurred such that Customer Data has or may have been compromised (for example, unauthorised access) (each a Security Incident), that Party must promptly notify the other Party and we agree to, within a reasonable time:
   1. remediate the Security Incident, to the extent that this is operationally, commercially and technically feasible; and
   2. conduct an investigation to determine whether a Security Incident has occurred, and where one has, the cause and impact of it on Customer Data.
2. You agree that we may suspend the Services where a security incident has or may have occurred and this is considered necessary or prudent (as determined by us, in our sole discretion) to address or deal with the Security Incident.
3. We will bear any costs associated with any investigation and remediation of a Security Incident, unless the incident triggering this is by an Authorised User or is as a result of, or in connection with, non-compliance with this Agreement by you (or an Authorised User).]

20. Notifiable Data Breaches

1. To the extent that the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us, if as a result of our investigations in accordance with clause 1(b) of this Agreement, we believe a Security Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will:
   1. promptly notify you of this by telephone or email;
   2. provide notice to the Office of the Australian Information Commissioner in accordance with the Notifiable Data Breaches Scheme; and
   3. be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Security Incident.
2. Where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.

21. Confidential Information

1. Each Receiving Party agrees:
   1. not to disclose the Confidential Information of the Disclosing Party to any third party;
   2. to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
   3. to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
2. The obligations in clause 1 do not apply to Confidential Information that:
   1. is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
   2. is authorised to be disclosed by the Disclosing Party;
   3. is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
   4. must be disclosed by Law or by a regulatory authority, including under subpoena.
3. Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 21. 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 21.
4. This clause 21 will survive the termination of this Agreement.

22. Intellectual Property Rights

1. This clause 22 will survive termination or expiry of this Agreement.
2. The Parties agree that nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property RightsOur Intellectual Property Rights
3. You agree that we (or the relevant third party) owns all Intellectual Property Rights in:
   1. Our Materials;
   2. New Materials or Improvements; and
   3. any Feedback,
      and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
4. In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.
5. You also agree that:
   1. we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;
   2. you must not whether directly or indirectly, without our prior written consent:

1. 1. 1. copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the SaaS Services (or any part of the Equipment or Services) or otherwise attempt to discover any part of the source code of the SaaS Services;
      2. use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Services;
      3. use the Services in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights;
      4. publish, post, upload or otherwise transmit data that contains any viruses, trojan horses, worms, time bombs, malware, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person;
      5. use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services;
      6. unless authorised under this agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;
      7. rent the use of the Services to any third parties;
      8. take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;
      9. remove or deface any confidentiality, copyright or other proprietary notice placed on the Services;
      10. make any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Services or any other matter;
      11. use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing; or
      12. do any other thing in relation to the Services which is specifically prohibited by us, whether by verbal instruction or direction, or in writing.

Your Materials

6. We agree that you own all Intellectual Property Rights in Your Materials.

7. You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.

8. If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

Customer Data

9. As between you and us:

1. 1. all Customer Data is and remains your property; and
   2. you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.

10. You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term (and for a reasonable period after the Term), to:

1. 1. supply the Services to you (including to enable you and your Personnel to access and use the Services);
   2. diagnose problems with the Services;
   3. enhance and otherwise modify the Services;
   4. perform Analytics;
   5. develop other services, provided we de-identify the Customer Data, and
   6. as reasonably required to perform our obligations under this Agreement.

11. You acknowledge and agree that:

1. 1. you must, at all times, ensure the integrity of the Customer Data and that the collection and use of the Customer Data is compliant with all Laws;
   2. we assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data; and
   3. the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

12. You represent and warrant that:

1. 1. you have obtained all necessary rights, releases and permissions to provide all Customer Data to us and to grant the rights granted to us in this Agreement; and
   2. the Customer Data is accurate and complete;
   3. the Customer Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
   4. any use, collection and disclosure authorised in this Agreement is not inconsistent with the terms of any applicable privacy policies.

23. Analytics

1. Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
   1. does not contain identifying information; and
   2. is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
2. We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

24. Australian Consumer Law

1. Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL.
2. You agree that our Liability for the Services is governed solely by the ACL and this Agreement.
3. Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Services) are provided to you without warranties, representations and guarantees of any kind, unless expressly stipulated in this Agreement.
4. This clause 24 will survive the termination or expiry of this Agreement.

25. Limitations on Liability

1. Despite anything to the contrary, to the maximum extent permitted by law:
   1. neither Party will be liable for any Consequential Loss;
   2. a Party’s liability for any Liability under this Agreement (including as part of any indemnity) will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure to mitigate that Liability; and
   3. Subject to clause 2 / 25.3 / 25.4, our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
2. This clause 25 will survive termination or expiry of this Agreement.

26. Exclusions to Liability

1. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
   1. loss of, or damage to, any property or any injury to or loss to any person;
   2. the Computing Environment;
   3. any reliance on or in relation to the Services (including any reports produced) by you, including for the purposes of complying with any obligations on you (including under any Laws);
   4. your or your Personnel’s acts or omissions;
   5. any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
   6. any work, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
   7. any Third-Party Inputs;
   8. the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and
   9. any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).
2. This clause 26 will survive termination or expiry of this Agreement.

27. Termination

1. You agree that you can only terminate this Agreement in accordance with this clause 27 and as set out in the Schedule (see "Term"), and that there are no other rights for you to terminate for any other reason (including convenience or change of mind).
2. This Agreement will terminate immediately upon written notice by:
   1. us, if:
      1. you (or any of your Personnel) breach any material term of this Agreement;
      2. you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within 20 Business Days of being notified by us;
      3. you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
      4. do not adjust your usage of our Support Services in line with a request by us that is issued in accordance with this Agreement;
      5. for any other reason outside our control which has the effect of compromising our ability to provide the Services;
      6. you are unable to pay your debts as they fall due; or
      7. you attempt to terminate this Agreement early (including through repudiation); and
   2. you, if we:
      1. are in breach of a material term of this Agreement, and that breach has not been remedied within 20 Business Days of being notified by you
      2. issue you with a notice that the Services are being varied under clause 2(b) of this Agreement and you choose to terminate this Agreement in accordance with clause 9.3 of this Agreement; or
      3. are unable to pay our debts as they fall due.
3. Upon expiry or termination of this Agreement:
   1. 1. we will immediately cease providing the Services;
      2. we will be entitled to anonymise or permanently delete all Customer Data within 1 month from expiry or termination of this Agreement and will do so, in any event, within 6 months;
      3. we will securely delete or destroy, at your request and within reasonable time, any Personal Information belonging to you that we have in our possession;
      4. you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
      5. where termination is as a result of clause 2(a)(1), (2), (3), (4) or (7), you also agree to pay us our additional costs arising from, or in connection with, such termination; and
      6. immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of Our Materials, Confidential Information and Intellectual Property).
4. Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
5. We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
6. This clause 27 will survive the termination or expiry of this Agreement.

28. General

1. Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.
2. Amendment: This Agreement may only be amended by a written instrument executed by the Parties.
3. Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
4. Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
5. Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute.If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties.

   If the Parties cannot agree how to resolve the Dispute at mediation, either Party may refer the Dispute to arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) rules. Once a Dispute has been referred to the ACICA, the Parties agree to be bound by the decision of the ACICA. The seat of arbitration shall be Sydney, Australia.  The language of the arbitration shall be English. The number of arbitrators shall be one.

   Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

6. Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
7. Entire agreement: This 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.
8. Exclusivity: The Services will be provided to you on a non-exclusive basis.
9. Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into this Agreement) (Force Majeure Event).
10. Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
11. Governing law: This Agreement is governed by the laws of New South Wales.
12. Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
13. Online execution: This Agreement may be executed by means of such third-party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
14. Publicity: You agree that, with your prior consent, we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
15. Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
16. Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.

29. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in this Agreement, the Schedule, and:

Account means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Services;

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;

Additional Services means any Services not set out in the Services description in the Schedule which we agree to provide to you;

Agreement means these terms and conditions, all schedules (including the Schedule), annexures and attachments included, or referred to, in this agreement;

Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in the Schedule;

Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes information which:

1. is disclosed to the Receiving Party in connection with this Agreement at any time;
2. is prepared or produced under or in connection with this Agreement at any time;
3. relates to the Disclosing Party’s business, assets or affairs; or
4. relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel or Authorised Users into the Services or stored by the Services or generated by the Services as a result of your use of the Services (excluding the information and content in any pre-populated answers). For example, where you are selecting from answers that are pre-populated by us, which answer you select will form part of the Customer Data but the content or any information in that answer will not.

Expenses means any disbursements, travel costs, accommodation costs and third-party costs, reasonably and directly incurred by us or our Personnel for the purpose of the provision of the Services;

Feedback means any idea, suggestion, recommendation or request by you (or any of your Personnel or Authorised Users or your customers), whether made verbally, in writing, directly or indirectly, in connection with the Services;

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

Insolvency Event means any of the following events or any analogous event:

1. a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
2. a Party ceases, or threatens to cease, carrying on business;
3. a Party is unable to pay the Party’s debts as the debts fall due;
4. any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
5. any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
6. any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;

Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):

1. copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
2. creating derivative works from our Intellectual Property;
3. providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
4. assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights, except as expressly permitted in this Agreement;
5. reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or

using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (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 and whether involving a third party or a Party to this Agreement or otherwise;

Licence is defined in clause 3.1 of this Agreement.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement and the Services (including any machine learning algorithms output from the Services but excluding Customer Data), whether before or after the date of this Agreement.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including the Specifications, Intellectual Property and Services) that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws. For the avoidance of doubt, Our Materials includes any information and content made available to you as part of the Services, including in any pre-populated answers such as those that you can select as part of using our Services and any and all resources (including templates)).

Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws has the meaning given in clause 17 of this Agreement.

Privacy Policy means any privacy policy set out on our Site;

SaaS Services has the meaning given to it in the Schedule;

Schedule means the schedule attached to these terms and conditions;

Sensitive Information is defined in the Privacy Act.

Site means the website located https://arctic-intelligence.com/;

Statutory Rights has the meaning given in clause 24.1 of this Agreement.

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

Your Materials means all work, designs and logos, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.

30. Interpretation

In this Agreement, unless the context otherwise requires:

1. 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;
2. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
3. 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;
4. no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
5. a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
6. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
7. a reference to time is to local time in New South Wales; and
8. a reference to $ or dollars refers to the currency of Australia from time to time.