Terms & Conditions
Terms & Conditions
SOFTWARE AS A SERVICE AGREEMENT
Introduction
Thank you for using the OctopusBI Product.
This Agreement (as defined herein) describes the rights, responsibilities, and obligations for us and you.
This Agreement is between us (as defined below) and you, as referenced in the applicable and Order Form (as defined herein) and is effective upon commencement of the subscription period as specified in the Order Form.
You acknowledge that you have read and understood this Agreement and Data Processing Addendum annexed hereto and agree to be bound by all of their terms.
1.0 Definitions and Interpretation
1.1 In this Agreement unless the context otherwise requires:
Affiliate means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
Agreement means this Agreement, including without limitation the Order Form, which defines the terms and conditions of the license of the OctopusBI Product.
Authorized User means an individual who you permit to access and use the OctopusBI Product in accordance with the terms of this Agreement, such as individuals invited by you and individuals under managed accounts.
Claims means claims, demands, suits, actions, damages, liabilities, losses, penalties, costs and expenses, proceedings, including any attorney and court fees/expenses.
Confidential Information means any information of a confidential nature (whether provided verbally or by way of a document or other material in human or machine-readable form) which relates to OctopusBI or you and includes:
- i. any information regarding the pricing or discounts offered to you by us.
- ii. information regarding details of any Intellectual Property, including trademarks, patents, copyrighted materials, trade secrets, designs, drawings, know-how, plans, models, or computer software owned by or licensed to us;
- iii. information which is marked as confidential by a party; or
- iv. information which the recipient knows, or ought to know, is confidential but does not include information that is, or after the date of this Agreement becomes, freely available to the public (otherwise than as a result of a breach of this Agreement).
- v. specifically, our Confidential Information includes any performance information relating to the OctopusBI Product and OctopusBI Software will be deemed our Confidential Information without any marking or further designation, the design, specification and content of the OctopusBI Product, including any source codes, our personnel information, operational and other policies, project documentation, proposals, or other development documentation, including any specification, or business strategies, and the terms of this Agreement, including the fees and information relating to our pricing.
Corporations Act means the Corporations Act 2001 (Cth)
Data Protection Laws means the GPRD, laws, regulations, and binding administrative rules worldwide regarding the protection of data and privacy of individuals, but not including any industry-specific or sector-specific laws, regulations, rules, or industry-standards, such as those related to healthcare, financial services, payment card, or government and public bodies
Data Breach means (a) any unauthorized access to, or unauthorized disclosure of, any OctopusBI Personal Information held by you; or (b) any OctopusBI Personal Information held by you is lost in circumstances where unauthorized access to, or unauthorized disclosure of, OctopusBI Personal Information is likely to occur.
Data Processing Addendum means the Data Processing Addendum as attached hereto as (including its/wiki/spaces/OL/pages/1607499790 annexures and appendices).
Eligible Data Breach has the meaning given by Division 2 of Part IIIC of the Privacy Act.
Fees means the fees and charges set out in the Order Form or as amended in accordance with this Agreement from time to time.
Intellectual Property Right means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Law means all applicable laws, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
OctopusBI means Ayra Group Pty Ltd (Australian Company Number 611 902 106).
OctopusBI Personal Information includes any Personal Information of OctopusBI, OctopusBI’s Personnel, customers, prospective customers and end users of the products and services supplied under this Agreement.
OctopusBI Product means the particular hosted services and cloud-based solutions, which use the OctopusBI Software, and update and change from time to time, and offered by us through the Order Form.
OctopusBI Software means the platform owned and operated by OctopusBI which assists users to analyse and predict educational outcomes or any other platform operated by OctopusBI from time to time.
Order Form means the online or paper-based order form, or quote, or proposal under which you can place, or accept, an order for the use of the OctopusBI Software, as executed by you and accepted by us in writing.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not, including personal information of a natural person under any Data Protection Law.
Personnel means any personnel, employee, agent, contractor, subcontractor, director, officer, secondee or representative of a party.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Legislation means the Privacy Act, the Spam Act 2003 (Cth), any registered APP Code that binds a party and any other laws, industry codes and policies relating to the handling of Personal Information.
Privacy Policy means the privacy policy of OctopusBI as amended or replaced from time to time, which is currently published at http://octopusbi.com/privacy-policy/
Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act.
Tax means any federal, state or local sales, use, value added, goods and services, or other similar transaction taxes, as well as withholding tax.
Term means the Initial Term and any renewal of such term pursuant to clause 3.2.
Termination Date means the date that this Agreement is terminated.
You means the entity you represent in accepting this Agreement or, if that does not apply, you individually.
Your Data means:
- (a) any data, content, code, video, images, and Personal Information, or other materials of any type submitted, uploaded, transmitted or otherwise made available to or through the OctopusBI Software by you or any person authorised by you; or
- (b) any results of data analysis and any other reports and outputs generated by the OctopusBI Software.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
- (a) a reference to this Agreement or any other document includes the document, as novated, amended, supplemented, varied or replaced from time to time;
- (b) words denoting any gender include all genders;
- (c) “includes”, “including” and similar expressions are not words of limitation;
- (d) where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
- (e) a reference to this Agreement, a document or another instrument includes any variation or replacement of either of them;
- (f) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- (g) the singular includes the plural and vice versa;
- (h) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
- (i) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;
- (j) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive to that day; and
- (k) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
2.0 Acceptance
This Agreement and the annexed Data Processing Addendum becomes binding when you sign an Order Form upon our written acceptance of such Order Form (or by checking a checkbox indicating acceptance in case of an online Order Form and upon our written acceptance of such Order Form)
3.0 Grant of License and Term
3.1 In consideration of the payment of Fees by you, and subject to the terms of this Agreement, OctopusBI grants to you (and any of your Authorized Users) a non-exclusive, revocable, non-transferable license to use the OctopusBI Product during the Term, unless otherwise determined in the Order Form.
3.2 This Agreement is for the subscription period as referenced in the Order Form, and will automatically renew at the end of each Term for another year, unless either party gives written notice to the other party of its intention to terminate this Agreement at least two months priorto the end of the then current Term, subject to termination otherwise pursuant to clause 25.
4.0 Access to the OctopusBI Product
4.1 You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the OctopusBI Software or otherwise use the OctopusBI Software, including, without limitation, modems, hardware, software, internet service and telecommunications capacity.
4.2 You are responsible for ensuring that such equipment and ancillary services are compatible with the OctopusBI Software
5.0 Use of the OctopusBI Product
5.1 No Order Form is or can become contingent on the delivery of any future functionality or feature or dependent on any oral or written public comments made by us regarding future functionality or feature.
5.2 You acknowledge that the OctopusBI Product referenced in an Order Form is being purchased separately from any of our other OctopusBI Products.
5.3 Certain OctopusBI Products may be subject to additional limitations, restrictions, terms and/or conditions specific to such OctopusBI Products (Specific Terms). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant OctopusBI Product will be contingent upon your acceptance of and compliance with such Specific Terms.
6.0 Trial user
6.1 If this Agreement is for a trial or evaluation, the licenses granted herein will terminate upon the expiration or cancellation of the trial or evaluation period. You may use the OctopusBI Product only for the duration of the trial or evaluation period.
6.2 At the end of this period, you have the option of subscribing for the use of the OctopusBI Product for a Fee. If you do not subscribe, your access to the OctopusBI Product will be restricted or terminated by OctopusBI at any time without further notice.
6.3 If you choose not to subscribe to the OctopusBI Product following your trial, we will delete Your Data after your trial ends.
7.0 Eligibility to Use the OctopusBI Product
7.1 By using the OctopusBI Product, you represent that:
- (a) Your use of the OctopusBI Product does not violate any applicable law or regulation;
- (b) all required information that you submit in order to use the OctopusBI Product is accurate and you will maintain the accuracy of the information at all times;
- (c) You are and will remain throughout the Term in compliance with all applicable information security, data protection, privacy and /or other statutes, acts, laws, regulations and directives relating to the use of the OctopusBI Product.
7.2 If OctopusBI is informed or has reason to believe that you are not eligible to use the OctopusBI Product or that you become ineligible, your use may be suspended or terminated without notice, and your account may be suspended, blocked and/or deleted, at Octopus’ sole discretion.
8.0 Use of OctopusBI Product
8.1 Where the OctopusBI Product contains, or otherwise incorporates third-party software or open-source material it may contain copyright or other legal notices (Special Notices). You must not delete, modify or alter those Special Notices. In the event of any inconsistency between this Agreement and a license associated with an open-source component, the relevant open-source component license will take precedence (but solely with respect to the open-source component(s)). For example, where an open-source component license permits use of that open-source component in a manner otherwise restricted under this Agreement, you are entitled to use the open-source component as permitted under its associated license.
8.2 Where you alter the script (code) or any other electronic file associated with the OctopusBI Software (Altered Component), you do so at your own risk and liability, and you acknowledge that you are wholly responsible for, and warrant you will comply with, the terms of any license(s) applicable to that Altered Component, including, but not limited to, payment of any applicable license fees triggered by enabling features subject to a commercial license, arising from any such foregoing action by you; and you agree to indemnify and compensate OctopusBI for any loss or damage suffered by OctopusBI for any breach of said warranty.
8.3 OctopusBI has no obligation, but reserves the right, to monitor and review your account information and history and the content and materials uploaded by you or others in the OctopusBI Software for the purpose of determining compliance with this Agreement or to detect illegal activity.
8.4 The OctopusBI Software may require you to take certain steps to activate your access to the OctopusBI Product or validate your subscription. Failure to activate or register for the OctopusBI Product, validate your subscription to the OctopusBI Product, or a determination by us of fraudulent or unauthorised use of the OctopusBI Product entitles OctopusBI to reduce your access to functionality of the OctopusBI Product, or terminate this Agreement or suspend your access to the OctopusBI Product pursuant to clause 25 or clause 26, respectively.
9.0 Use Terms
9.1 You agree that, subject to any applicable laws:
- (a) you, and you must procure that each Authorized User, must only use the OctopusBI Product for your lawful internal business purposes, in accordance with this Agreement:
- (b) you are responsible for determining who is an Authorized User and what level of access to the OctopusBI Product each Authorized User will have;
- (c) you must not provide false information when registering or changing your registration details or when nominating an Authorized User;
- (d) you will be given or must select individual login credentials for the OctopusBI Product and login credentials are confidential to each Authorized User, must not be shared and must be kept confidential;
- (e) you, and you must procure that each Authorized User, must immediately notify OctopusBI of any unauthorized use of login credentials or any other breach of security. Where a breach of security occurs, OctopusBI may reset the relevant login credentials and you must take all other actions that OctopusBI reasonably deems necessary to maintain or enhance the security of the OctopusBI Product;
- (f) you are responsible for all Authorized Users’ use of the OctopusBI Product and must ensure that all Authorized Users comply with the terms of this Agreement and with any of your applicable contract terms or policies, including any contractor/employment contracts or contractor’s/employer’s policies regarding technology usage, security, or confidentiality, and use commercially reasonable efforts to prevent unauthorized access or use of the OctopusBI Product;
- (g) you must control each Authorized User’s level of access to the OctopusBI Product at all times;
- (h) you, and you must procure that each Authorized User, must not attempt to undermine the security or integrity of the OctopusBI Software, its computing systems and its networks or, where the OctopusBI Software is hosted by a third party, that third party’s computing systems and networks;
- (i) you, and you must procure that each Authorized User, must not use, or misuse, the OctopusBI Software in any way which may impair the functionality of the OctopusBI Software, or other systems used to deliver the OctopusBI Software or impair the ability of any other user to use the OctopusBI Software;
- (j) you, and you must procure that each Authorized User, must not attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the OctopusBI Software are hosted;
- (k) you, and you must procure that each Authorized User, must not transmit, or input into the OctopusBI Software, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use);
- (l) you, and you must procure that each Authorized User, must not use the OctopusBI Software or any communication tool available on the OctopusBI Software for posting or disseminating any material unrelated to the use of the OctopusBI Software, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail or content that may be offensive to any other users of the OctopusBI Software;
- (m) when you or an Authorized User make any communication on the OctopusBI Software, you represent that you are permitted to so. You acknowledge that we have no obligation to monitor your communications whether they are legitimate or that they are related only to the use of the OctopusBI Software. We reserve our right to remove any communication at any time in our sole discretion, if we reasonably believe it is in violation of this Agreement;
- (n) you accept sole responsibility for the legality of your actions and the actions of your Authorized Users under the laws which apply to you and your Authorized Users; and
- (o) you agree that Octopus, its directors, officers, employees, agents, contractors, successors, assignee’s and suppliers have no responsibility for the legality of your actions and the actions of your Authorized Users.
10.0 Usage Restrictions
10.1 Use of the OctopusBI Product may be subject to limitations, including but not limited to giving access to third-party providers to integrate with the OctopusBI Software. Any such limitations will be advised from time to time.
11.0 Data Storage and Back-Ups
11.1 You agree and acknowledge that you are solely responsible for Your Data.
11.2 You must maintain copies of all Your Data made available to or through the OctopusBI Software. OctopusBI does not guarantee that there will be no loss of data including Your Data. OctopusBI expressly excludes liability for any loss of data including Your Data no matter how caused.
12.0 Your Data
12.1 When you make Your Data available to us to or through the OctopusBI Software or otherwise in connection with the use of any OctopusBI Product, you grant to us a worldwide, royalty-free, and non-exclusive license to use, copy, transmit, store, and back-up Your Data for the purposes of enabling you and the Authorised Users to access and use the OctopusBI Product and for the purposes of providing our services to you, and enhancing, improving and further developing our products and services.
12.2 You must ensure that Your Data, and its collection, use, processing, disclosure via the OctopusBI Software:
- (a) will not infringe any Intellectual Property Rights of any person, or violet any privacy, publicity or other rights; and
- (b) complies with all applicable Law that apply to Your Data.
12.3 For the avoidance of doubt, when you make Personnel Information available to us you must comply with the Data Protection Laws,
including but not limited to:
- (a) make all disclosures and obtain all consents necessary to allow us to collect, store, use, disclose and otherwise deal with the Personal Information lawfully in accordance with this Agreement.
- (b) the Data Protection Addendum in Annexure 1.
- (c) if you provide us with Personnel Information of a person under the age of 16 years (“Minor”), you must ensure you have obtained the express consent of the parent or guardian to the Minor to the collection, storage and process of the Personnel Information of the Minor by us in accordance with this Agreement;
- (d) you have obtained the express consent for the Personnel Information to be transferred outside of those jurisdictions, such as the European Union and the United Kingdom, which are the subject of their own Data Protection Laws;
- (e) where ‘special categories of data’ are provided by you to us, implement sufficient security controls and technological measures to handle and deal with that data in accordance with the Data Protection Laws.
12.4 You further represent and warrant that you have obtained all necessary rights, releases and permissions to make Your Data available to us or through the OctopusBI Software or otherwise in connection with the use of any OctopusBI Product, and to grant the rights granted to us in this Agreement.
12.5 Other as outlined in the Data Processing Addendum, you acknowledge that we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the OctopusBI Software.
12.6 Without limiting the foregoing, you agree that OctopusBI may collect and use technical information to provide support services related to the OctopusBI Product. This may include:
- (a) OctopusBI remotely accessing your systems; or
- (b) you sending information or system data to OctopusBI.
12.7 Our processing of Your Data is subject to the Data Processing Addendum.
12.8 You will defend, indemnify and hold harmless us and our Affiliates (and our and our Affiliates’ Personnel) from and against any and all Claims resulting from any Claim arising from or related to your breach of clauses 12.1, 12.2, and 12.3 or any Claims or disputes brought by an Authorized User arising out of its use of any OctopusBI Product.
This indemnification obligation is subject to you receiving:
- (a) prompt written notice of such Claim (but in any event notice in sufficient time for you to respond without prejudice);
- (b) the exclusive right to control and direct the investigation, defense or settlement of such Claim; and
- (c) all reasonable necessary cooperation by us at your expense.
12.9 For the avoidance of doubt, this clause 12 is a fundamental term of this Agreement.
13.0 Intellectual Property
13.1 You acknowledge and agree that we own or license all Intellectual Property Rights in the OctopusBI Products and OctupusBI Software, and nothing in this Agreement is intended to transfer ownership of or interest in any of our Intellectual Property Rights or any third party.
13.2 We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to the OctopusBI Software.
13.3 You agree not to (and you must procure that no Authorised User will) disassemble, de-compile or otherwise reverse engineer the OctupusBI Software or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the OctupusBI Products and OctupusBI Software.
13.4 Except where permitted under the Australian Copyright Act 1968 (Cth) or other applicable laws, and except for the temporary copy held in the cache of any Authorised User’s computer, any of the OctopusBI Software’s content (including any substantial part of them) must not otherwise be used, stored, copied reproduced, published, altered, adapted, distributed, printed, displayed, transmitted or commercialized in any form or by any means in whole or part without our prior written consent.
14.0 Feedback
If you, or any of your personnel, provides us with ideas, comments, process descriptions, or suggestions (together Feedback) relating to our business and/or our products and services, all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us and we may use or disclose the Feedback (even if such Feedback is Confidential Information) for any purpose, without any compensation to you or any restriction or obligation on account of Intellectual Property Rights or otherwise.
15.0 Billing
15.1 Except for implementation services, all OctopusBI Products are offered either on a monthly subscription basis or an annual subscription basis.
15.2 You must pay all Fees (plus any Taxes) during your subscription period and any renewal periods by the due dates and in the currency as specified in the Order Form. If a due date is not specified in the applicable Order Form, all payments shall be made in the currency specified in the Order Form within fourteen (14) days of the date the invoice was issued to you.
15.3 Unless stated otherwise, all Fees quoted are exclusive of any Taxes payable in respect of the OctopusBI Products in the jurisdiction where the payment is either made or received. To the extent that any such Taxes are payable by us, you must pay to us the amount of such Taxes in addition to any Fees owed under this Agreement.
15.4 All payments to be made by you to us are made net of any applicable withholding taxes. We will work with you to avoid any withholding tax if exemptions and reductions are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You must provide us reasonable evidence that you have paid the relevant authority for the
sum withheld or deducted.
15.5 OctopusBI will use reasonable efforts to issue to you a tax invoice to you with respect of the Fees to enable you to obtain a refund or credit from the relevant revenue authority.
15.6 Any amount not paid when due will bear interest from the due date until paid at a rate equal to 2 % per month (12% annually) or the maximum allowed by law, whichever is less.
15.7 In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including commission on collection of the additional costs and also including legal demand costs.
15.8 You acknowledge that use and access to the OctopusBI Software is contingent on full payment of the Fees as and when they are due.
15.9 We revise the Fees annually by 5%, unless otherwise agreed in an addendum or the Order Form.
15.10 Unless otherwise expressly agreed to in writing, any discounts applied to a Term does not apply to another Term.
15.11 Unless otherwise agreed in writing, all amounts payable to us are non-refundable, non-cancelable and non-creditable.
16.0 Change Procedure/Variation to the terms
16.1 OctopusBI may change the term of this Agreement, subject to the terms of this clause.
16.2 OctopusBI will notify you of any material change to the terms of this Agreement.
16.3 Material changes to the terms of this Agreement will become effective 30 days after the notice is given, except those changes applicable to new services or functionality of the OctopusBI Product will be effective immediately. Unless OctopusBI’s change of any term of this Agreement (Changed Terms) is required by a court, judicial or administrative order issued by the competent authority or by applicable law, or applies to new services or functionality of the OctopusBI Product, then the following will apply:
If Changed Terms have a material adverse impact on you, then you may object to the Changed Terms by notifying OctopusBI within one month after OctopusBI provided notice of Changed Terms you. If you so notify OctopusBI, then the terms in effect immediately before the Changed Terms apply until the earlier of:
- (a) the end of the then-current Term; or
- (b) OctopusBI’s termination of this Agreement under clause 25
17.0 Security and Access
17.1 You may determine what level of access each Authorised User has to Your Data.
18.0 Confidentiality and Announcement
18.1 Subject to clauses 19.2 and 19.3, each party must not disclose, Confidential Information of the other party.
18.2 A party may only disclose Confidential Information of the other party:
- (a) to persons who control, or are controlled by, the party within the meaning of the Corporations Act, and the employees, professional advisors of such persons, in each case under corresponding obligations of confidence as imposed by this clause and only where such persons, employees, legal advisors or consultants of such persons have a need to know such information in connection with this Agreement;
- (b) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
- (c) to the extent required by Law or pursuant to a binding order of a government agency or court.
18.3 We may disclose Confidential Information to the extent necessary in connection with a capital raising, financing, or transfer or divestiture of all or a portion of its business, or otherwise in connection with a merger, consolidation, change in control, reorganisation or liquidation of all or part of our business, but will use reasonable efforts to minimise the scope of such disclosure.
18.4 We may disclose the fact that the parties have entered into this Agreement. In this context we may also use your name, logo, and trademarks and refer to our relationship with you in our business development and marketing efforts.
18.5 At our request, the parties will work together in good faith to issue a press release announcing the relationship created under this Agreement.
19.0 Data Breach
19.1 Subject to the Data Processing Addendum, if during the term of this Agreement, you become aware of a Data Breach, you must:
- (a) notify OctopusBI in writing as soon as it becomes aware of such Data Breach;
- (b) as soon as reasonably practicable:
- (i) undertake an investigation to determine the extent to which the Data Breach concerns any OctopusBI Personal Information; and
- (ii) provide the results of the investigation to OctopusBI in writing, including the details of, and the circumstances giving rise to, the Data Breach and any additional information requested by OctopusBI in relation to the Data Breach;
- (c) immediately take all necessary steps to:
- (i) remedy such Data Breach; and
- (ii) (prevent or mitigate any consequences, including any serious harm (as referred to in the Privacy Act) to any affected
individuals; and
- (d) comply with all directions of OctopusBI in relation to the Data Breach in respect of OctopusBI Personal Information.
19.2 In respect of any Data Breach concerning any OctopusBI Personal Information, and without limiting each party’s obligations under the Privacy Legislation, including in respect of Divisions 2 and 3 of Part IIIC of the Privacy Act, the parties agree that OctopusBI must have sole control over:
- (a) determining whether such Data Breach amounts to an Eligible Data Breach;
- (b) carrying out any assessment of a suspected Eligible Data Breach required by the Privacy Act, and you must cooperate with OctopusBI in relation to any such assessment;
- (c) preparing any statement of notification required by the Privacy Act, you must cooperate with OctopusBI in relation to any such statement; and
- (d) carrying out any notification required by the Privacy Act, and you must cooperate with OctopusBI in relation to any such notification.
20.0 No Pouching
You and we agree that, during the period of this Agreement for a period of one year following the termination or expiration of this Agreement, both parties will not employ, make an offer of employment to, or enter into a consulting relationship with any employee of the other with whom they had direct or indirect contact as a result of this Agreement.
21.0 Disclaimer
21.1 You acknowledge and agree that, to the extent permitted by Law that any OctopusBI Product is made available “as is” and we make no representation, warranty or guarantee:
- (a) that the OctopusBI Product will operate in combination with any other hardware, software, platform, or Your Data;
- (b) that the OctopusBI Product will meet your requirements or expectations;
- (c) that the OctopusBI Product, and information extracted from them, will be accurate, free from defects, bugs, errors or omissions, or that any of Your Data input into the OctopusBI Product will not be lost or corrupted; or
- (d) in relation to non-infringement, title, fitness for a particular purpose, functionality, availability or merchantability.
21.2 We use reasonable endeavors to ensure that the OctopusBI Products are free of viruses or other harmful components but cannot guarantee they will be free from unknown viruses and other harmful components.
21.3 We will not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other platforms outside of our reasonable control.
21.4 We disclaim all liability in respect of the results of any verification of identity performed using OctopusBI Products, including to the extent that such verification relies on the accuracy or completeness of any Your Data.
22.0 Limitation of Liability - OctopusBI
22.1 Subject to clause 23.2, our maximum liability and responsibility to you (or any other person including without limitation Authorised Users) in contract, tort (including negligence), or otherwise, for any loss (including without limitation loss of an indirect or consequential nature) or damage resulting, directly or indirectly, from any use of, or reliance on, the OctopusBI Software shall be limited to an amount equal to 100 per cent of the amount payable to us by you under this Agreement during the Term in which the liability arises.
22.2 Notwithstanding the above and notwithstanding any other provision in this Agreement, the limitation of liability referred to in clause 23.1 does not operate to limit or restrict our liability:
- (a) to the extent to which, by law, the parties cannot limit or contract out of such liability, including any liability that cannot be excluded under the Australian Consumer Law, the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia;
- (b) to the extent that we:
- (i) are indemnified in respect of that liability by a policy of insurance required under this Agreement; or
- (ii) would have been indemnified in respect of that liability by a policy of insurance required under this Agreement if we had:
- (A) diligently pursued a Claim under that policy of insurance;
- (B) complied with the term and conditions of that policy or insurance; or
- (C) complied with its insurance obligations under the Agreement;
- (c) for loss arising from any criminal acts, fraud or wilful misconduct on our part or those for whom we are responsible.
22.3 Where any condition, warranty or right is implied by law, or there is a statutory consumer guarantee that cannot be excluded, we limit our liability for breach of, or other act contrary to, that implied condition, warranty or right or statutory consumer guarantee, either as provided under section 64A of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or otherwise
to the extent permitted by law.
22.4 The parties agree that they interpret clause 12.1 of the EU SCCs (as defined in the Data Protection Addendum in Annexure 1) and any equivalent provision under the UK SSCs (as defined in the Data Protection Addendum in Annexure 1) with reference to the liability between the parties, as follows:
The liability of the parties can be limited as between the parties pursuant to the terms of this clause 23.
You agree that you must not make any Claim against us under clause 12.1 of the EU SCCs and any equivalent provision under the UK SSCs which would exceed our liability to you under this clause 23.
For the avoidance of doubt, if any data subject (as defined in the Data Protection Addendum in Annexure 1) makes any Claim against us for which you would be liable for or to the extent that you caused or contributed to the data subject’s Claim, you must defend, indemnify and hold us harmless from and against any and all Claims which we may incur as a result of the data subject’s Claim against us, or any Claims or disputes brought by the data subject against us, subject to your limitation of liability under clause 24.
23.0 Your Limitation of Liability
23.1 Nothing in this clause 24 limits your liability pursuant to clause 12.8.
23.2 Subject to clause 24.3, your maximum liability and responsibility to us in contract, tort (including negligence), or otherwise, for any loss (including without limitation loss of an indirect or consequential nature) or damage resulting, directly or indirectly, shall be limited to an amount equal to 100 per cent of the amount payable to us by you under this Agreement during the Term in which the liability arises.
23.3 The limitation of liability referred to in clause 24.2 does not operate to limit or restrict your liability:
- a) to the extent to which, by law, the parties cannot limit or contract out of such liability, including any liability that cannot be excluded under the Australian Consumer Law, the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia;
- (b) to the extent that you:
- (i) are indemnified in respect of that liability by a policy of insurance required under this Agreement; or
- (c) would have been indemnified in respect of that liability by a policy of insurance required under this Agreement if you had:
- (i) diligently pursued a claim under that policy of insurance;
- (ii) complied with the term and conditions of that policy or insurance; or
- (iii) complied with its insurance obligations under the Agreement;
- (d) for loss arising from any criminal acts, fraud or wilful misconduct on your part or those for whom you are responsible.
24.0 Termination
24.1 Each party may terminate this Agreement by notice if the other party breaches a material provision of this Agreement and fails to remedy the breach within 14 days of notice from, or the other breaches any provision of this Agreement that is irremediable, or that party repeatedly breaches any provision of this Agreement. Instead of termination under this clause, we may, by giving written notice to you, permanently or temporarily suspend you for any definite or indefinite period to use the OctopusBI Product.
24.2 We may terminate this Agreement where reasonably necessary to protect our legitimate commercial interests or at any other time for our convenience, in our absolute discretion.
24.3 In the event that we terminate this Agreement under clause 25.2, we will provide you with at least three months prior written notice.
24.4 The following provisions will survive any termination or expiration of this Agreement:
Clause 13 (intellectual Property), 14 (Feedback), 12 (Your Data), 19 (Confidentiality and Announcement ), 21(No Poaching), 22 (Disclaimer), 23 (Limitation of Liability – OctopusBI), 24 (Your Limitation of Liability), 25 (Termination), 27 (Order of Priority), and 28 (General).
24.5 For the avoidance of doubt, the Data Processing Addendum and the Standard Contractual Clauses will terminate simultaneously and automatically with the termination or expiry of this Agreement.
25.0 Suspension
25.1 We may modify or suspend the operation of the OctopusBI Product entirely or your access to the OctopusBI Product, at any time. Any such modification or suspension will be to the minimum extent and for the shortest duration required to:
- (a) prevent or terminate an offending use of the OctopusBI Product;
- (b) prevent or resolve the emergency security issue, such as but not limited to a violation of our Agreement or Privacy Policy where such valuation could disrupt the OctopusBI Software or other users of the OctopusBI Product, or an unauthorised third party access to the OctopusBI Software; or
- (c) comply with applicable Law.
25.2 If we exercise our right under clause 26.1, we have no liability to you for removing or deleting Your Data from or suspending your access to any OctopusBI Product.
26.0 Order of Priority
26.1 The parties must comply with any additional requirements and special conditions set out in the Order Form as accepted by us (Special Conditions).
26.2 The parties must also comply with terms of the Data Protection Addendum.
26.3 Subject to clause 23.4, if there is any inconsistency between this Agreement, the Data Protection Addendum, and the Order Form, the inconsistency must be resolved by giving precedence in the following decreasing order:
- (a) Data Protection Addendum; then
- (b) Order Form; then
- (c) this Agreement
26.4 In the event of a conflict between this Data Processing Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
27.0 General
27.1 Nothing in this Agreement renders you as our partner, legal representative, agent, or joint venturer.
27.2 Nothing in this Agreement will prevent us from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
27.3 You must not assign, transfer or novate, directly or indirectly, any of the rights or obligations under this Agreement without our prior written consent (such consent not to be unreasonably withheld). Any attempt to make any such assignment without our consent shall be null and void. We may assign, transfer or novate this Agreement without your consent. We may at any time assign, novate or otherwise dispose of or deal with our rights and obligations under this Agreement by notice in writing to you and you give us prospective authority to a future assignment and/or novation to be effectuated by us unilaterally.
27.4 Each party must promptly execute all documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in this Agreement.
27.5 Neither this Agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.
27.6 A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
27.7 Each party must promptly execute all documents and do everything necessary or desirable to give full effect to the arrangements contained in this Agreement.
27.8 If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses), which will continue in full force and effect.
27.9 The expiration or termination of this Agreement does not affect any right that has accrued to a party before the expiration or Termination Date.
27.10 This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.
27.11 Each party must pay its own legal costs and disbursements in connection with the negotiation, preparation, execution and carrying into effect of this Agreement.
27.12 The laws of New South Wales govern this Agreement. To the extent permitted by law, such governing law governs all matters arising out of or relating to this Agreement or its performance or subject matter, including its execution and formation
28.0 Notices
28.1 A notice or other communication given under this agreement must be in writing, in English and signed by the sender, addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the parties.
28.2 A party may change its notice details by written notice to the other parties.
28.3 A notice or communication is taken as having been given:
- (a) when left at a party’s current address for notices;
- (b) if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
- (c) if sent by email, if sent before 5 pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day (unless the party giving the notice receives notice that delivery of the notice failed or that the recipient is ‘out of office’)
28.4 This clause does not limit the way in which a notice can be deemed to be served under any law.
