SOFTWARE SERVICE AGREEMENT

 

THIS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES, WHETHER UNDER A RISK-FREE PERIOD OR PAID SUBSCRIPTION.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

You may not access the Services if You are Our Competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their performance or functionality, showing them to any Competitor or third party not governed by this Agreement, or for any other benchmarking or competitive purposes. This Agreement (which also includes all Order Forms that reference this Agreement) is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein. This Agreement was last updated on 4 April 2017. It is effective between You and Us as of the date of You accepting this Agreement.
1.  DEFINITIONS

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

1.2 “Aggregate Data” means all content, data and other information generated by Our Services, excluding Your Data but including use of Your Data to develop aggregate data and analyses.

1.3 “Competitor” means a company or organisation that develops, sells or distributes software or information management.

1.4 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognised in any country or jurisdiction in the world.

1.5 “Order Form” means any document specifying the Services to be provided hereunder that is entered into between Us and You, including any exhibits, addenda and supplements thereto. By entering into the Order Form hereunder, You agree to be bound by the terms of this Agreement as if it were an original part hereto.

1.6 “Services” means software, information management tools, decision support services and any other services provided by Us to You under this Agreement.

1.7 “User” or “Users” mean an individual or individuals who are authorised by You to use the Services, to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, or third parties with whom You transact business.

1.8 “We,” “Us” or “Our” mean the company referred to as FTI (1997) Pty Ltd (Fairport Technologies) with a place of business at Unit 3, 83 Mell Road, Spearwood, Western Australia.

1.9 “You” or “Your” mean the company or companies or other legal entity or entities for which you are accepting this Agreement, and Affiliates of that company, companies, entity or entities.

1.10 “Your Data” means information and data identifiable to You. This includes, but is not exclusive to the following data that identify You:

i. Operational data such as what products are used, which tasks are done when, and by whom;

ii. Financial data such as costs associated with activities and other data related to costs for Your operation; and

iii. Machine data. Your Data excludes any information or data identifiable to You that was in Our lawful possession prior to the disclosure, is publicly known through no act or omission of Ours, is rightfully disclosed to Us by a third party without restriction on use or disclosure, or is independently developed by Us, which independent development can be shown by written evidence.

2. USE OF SERVICES

2.1 Right of Access. Subject to Your compliance with the terms of this Agreement, We hereby grant to You a non-exclusive, non-transferable right for You and Your Users to access and use the Services during the Term, solely for your internal use, not for the benefit of any third party and subject to any limitations set forth herein. You agree to use the Services in conformance with our published user documentation.

2.2 Suspension of Services.

We reserve the right, at Our reasonable discretion, to temporarily suspend Your access to and use of the Services for any reason including:

(a) during planned downtime for upgrades and maintenance to the Services;

(b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or

(c) if We suspect or detect any malicious software connected to Your or Your Users’ accounts or use of the Service by You or Your Users.

2.3 Acceptable Use.

You will have the ability to create User accounts as part of Your subscription to the Services. It will be Your responsibility to manage any and all User accounts through the Term of the Agreement. You acknowledge and agree that We reserve the right but do not undertake the obligation to monitor communications or data transmitted through the Services and that We will not be responsible for the content of any such communications or transmissions. You and Your Users shall use the Services exclusively for authorised and legal purposes. You are solely responsible for the activity occurring under Your User accounts and shall ensure that You and Your Users abide by the terms of Our acceptable use policies, and all applicable local, state, national and foreign laws, treaties and regulations in connection with Your and Your Users’ use of the Services, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data.

2.4 Restrictions.

You shall not attempt to interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as set forth in Our published user documentation to access and use the Services). You shall not allow access to or use of the Services by anyone other than Users. You shall not:

(a) copy, modify or distribute any portion of the Services except as expressly permitted herein;

(b) rent, lease, or provide access to the Services on a time-share or service bureau basis; or

(c) transfer any of its rights hereunder (except as specified in Section 10.7).

You acknowledge that the Services and Aggregate Data contain trade secrets of Ours and Our licensors, and, in order to protect such trade secrets and other interests that We and Our licensors may have therein, You will not disassemble, decompile, or reverse engineer the foregoing, or authorise any third party to do so, except to the extent, if any, that applicable local law requires that such activities be permitted.

2.5 Enforcement. You shall promptly notify Us of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Us with respect to:

(a) investigation by Us of any suspected or alleged violation of this Agreement and

(b) any action by Us to enforce the terms and conditions of this Agreement.

You shall:

(a) take all steps reasonably required to ensure that all Passwords are used in accordance with this Agreement, and that no User or other personnel of Yours assists or allows another individual to use a Password without authorisation or provides false identity information to gain access to or use the Services; and,

(b) notify Us immediately of any unauthorised use of any Password or account or any other known or suspected breach of security. We may suspend or terminate any User’s and Your access to the Services without prior notice to You in the event that We reasonably determine that there has been a violation of the terms and conditions of this Agreement.  

3. DATA AND BRAND

3.1 Your Data.

You shall own and retain all right, title and interest in and to Your Data. You hereby grant to Us a non-exclusive, non-transferable license to access, use, reproduce and prepare derivative works based on Your Data for the purpose of providing the Services hereunder and to improve or enhance the Services. This license includes the use of Your Data to compile, use and disclose anonymous, aggregated statistics that include Your Data, provided that no such information will directly identify and cannot reasonably be used to identify You or Your Users. You shall be solely responsible for ensuring that You have obtained all necessary third party consents and made all required disclosures in connection with the foregoing grant.

3.2 Security.

We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data.

3.3 Branding.

You grant to Us a non-exclusive, non-transferable (except as permitted under Section 10.7), limited right to use Your name, trademarks, and logos in the provision of the Services, publishing of material on Our website, and production of marketing materials to promote Our products and services, which may include the disclosure of Your relationship with Us. In the event that We include Your name, trademark or logo on Our website or production of any marketing materials, We shall be required to obtain Your permission and notify You of the nature of such use.

3.4 Ownership by Us.

The Services, Aggregate Data and all derivative works, modifications and improvements to any of the foregoing, and all Intellectual Property Rights in or relating to any of the foregoing, are and shall remain Our exclusive property. Our brand features, including without limitation its corporate and product names and logos are trademarks of Ours or third parties, and no right or license is granted to use them.

3.5 Data Storage and Retention.  

Upon request within thirty (30) days following expiration or termination of this Agreement, You shall have the opportunity to:

(a) obtain Your Data from the Services in generally accessible electronic formats, and/or

(b) request that We permanently remove any directly identifying information from Your Data and User accounts from Our platform, storage files and products. In the event of either request, We shall have three (3) months to comply, after which We have the right to retain any non-identifiable aspects of Your Data. After the thirty (30) day period following expiration or termination of this Agreement, We have no obligation to maintain, delete Your Data or provide Your Data to You, although We may keep a record of Your Data in compliance with the surviving provisions of this Agreement.

4. CONFIDENTIALITY

4.1 Definition.

“Confidential Information” means all confidential or proprietary information of You or Us disclosed to the other, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to, marketing plans, budgets, financial information, technology, technical information, methods, processes, techniques, designs, computer programs and other business information. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that:

(a) Your Confidential Information shall include Your Data and

(b) Our Confidential Information shall include Our Services, Aggregate Data and all derivative works, modifications and improvements to such data made in conformance with Section 3.1, the terms and conditions of this Agreement, pricing and other terms set forth in all Order Forms hereunder.

4.2 Exclusions.

Confidential Information shall not include information that:

(a) is or becomes publicly known through no act or omission of the receiving party;

(b) was in the receiving party’s lawful possession prior to the disclosure without restriction on use or disclosure;

(c) is rightfully disclosed to the receiving party by a third party without restriction on use or disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

4.3 Nondisclosure.

Subject to the express permissions of this Agreement, We and You will protect each other’s Confidential Information from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms or by You or Us in respect to the Confidential Information each of us owns, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of Our respective employees, service providers, consultants, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. Except for the aforementioned employees, service providers, consultants, representatives and agents who would have access to Your Data on a confidential basis, and any potential Compelled Disclosure as described in Section 4.4 below, We will not provide third parties with access to Your Data without first obtaining your consent.

4.4 Compelled Disclosure. 

We may also access or disclose information about You, Your Users, Your Accounts, including Your Data, in the event that We

(a) are required by an applicable court, legislative or administrative body, or Commonwealth or State law of Australia, to disclose Confidential Information; or

(b) believe in good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.

5. FEES AND PAYMENTS

5.1 Fees.

You shall pay to Us the fees for the Services set forth in any Order Form associated with this Agreement, (“Fees”) in accordance with the terms set forth therein.

5.2 Taxes. 

You are responsible for any taxes, duties, levies, tariffs, and other governmental charges (other than Our income tax) associated with the sale of the Services, included any related penalties or interest (“Taxes”) and will pay Us for the Services without any reduction for such amounts. If We are obligated to collect or pay Taxes, We shall include such Taxes on any Our invoice, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority. If You are required by law to withhold any Taxes from Your payments to Us, You must provide Us with official documentation to support such withholding.

5.3 Payment.

All amounts are due through electronic subscription, on an annual basis, depending on the exact arrangement agreed to on an Order Form associated with this Agreement. 

6. TERM AND TERMINATION

6.1 Term.

This Agreement shall commence on the Effective Date and shall continue until the expiration of all Order Forms, unless terminated earlier as provided in this Agreement. The initial term and any renewal terms of each Order Form shall be as set forth therein. The initial term and renewal periods are collectively the “Term”. Unless specified by a party, the termination of an Order Form shall not result in the termination of the Agreement or any other Order Forms.

6.2 Termination.

Either party may terminate this Agreement or any Order Form upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.

6.3 Fairport Technologies Early Termination Provision. 

During the first sixty (60) days of the term of an Order Form, We reserve the right to terminate the Order Form if we determine, in our reasonable business judgment (considering your efforts during the onboarding process), that You are unlikely to successfully implement the Services.  In the event We terminate an Order Form under this Section 6.3, We shall refund to You eighty percent (80%) of any fees you prepaid for the services described in the Order for the then-current term.

6.4 Rights and Obligations Upon Termination.

Upon expiration or termination of this Agreement or applicable Order Form, Your and Your Users’ right to access and use the Services thereunder shall immediately terminate, You and Your Users shall immediately cease all use of the Services.

6.5 Survival.

The rights and obligations of Us and You contained in Sections 2, 3, 4, 5, 6, 7, 8, 9, and 10 shall survive any expiration or termination of this Agreement.

7. WARRANTY AND DISCLAIMERS

7.1 Limited Warranty. 

We warrant that the Services will function substantially in accordance with our then-available product specifications. Your sole and exclusive remedy for any breach of the foregoing warranty will be for Us to re-perform the Services in a manner that conforms to the warranty. If we are unable, or is it is not reasonably commercially possible to correct the non-conformity and, if We are unable to correct the non-conformity, We may, at our discretion, terminate the applicable Order Form or Agreement and provide You with a refund of any unused, prepaid fees for the applicable Term.

7.2 General Disclaimers.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVCES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, BETA SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

7.3 Specific Disclaimers.

The results of any report, output or recommendation from the Services are based, in large part, by completeness, truth and accuracy of Your Data. Any incorrect information input by You or Your Users will affect such report, output or recommendation in a negative manner, potentially rendering them incorrect and damaging. Even if Your Data is comprehensive, true and accurate, we do warrant that any output, report or recommendation made available through the Services will processed correctly, save you money, increase profits, increase yields or any other result or otherwise allow you to meet your goals. You may not rely on the information contained in any report, output or recommendation, which are provided for informational purposes only. You must use your professional judgment in determining whether to comply with any such report, output or recommendation. We are not responsible for any of your acts or omissions resulting from your action or inaction resulting from such report, output or recommendation. As the Services evolve, We may provide You and Your Users’ explanations on how the Services work and certain additional specific disclaimers. Any such specific disclaimers acknowledged by any User, including through a clickwrap made available within the Services, are agreed to be incorporated by reference into this Agreement.

8. INDEMNIFICATION

8.1 Indemnification by Us.

We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from:

(a) any damages, awards or fees finally awarded against You or

(b) for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You

(a) promptly give Us written notice of the Claim Against You,

(b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and

(c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You

(i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 7.1,

(ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or

(iii) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You any prepaid, but unused fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement.

8.2 Indemnification by You.

You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Services other than in conformance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any:

(a) damages, awards or fees finally awarded against Us as a result of, or

(b) for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We

(a) promptly give You written notice of the Claim Against Us,

(b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and

(c) give You all reasonable assistance, at Your expense.

8.3 Exclusive Remedy. 

This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.

9. LIMITATION OF LIABILITY UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10. GENERAL PROVISIONS

10.1 Governing Law.

This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of Australia, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Western Australia. We and You hereby submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

10.2 Entire Agreement. 

This Agreement, including any Order Forms, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.

10.3 Amendment.

This Agreement may only be modified or amended by the affirmative consent from a duly authorised representative of each party. In the event that We modify the Agreement to reflect changes in our terms of service or privacy policy during the Term, We will notify You by email or other means and Your continued use of the Services will indicate Your affirmative consent to the amended terms. In the event You do not consent to the amended terms You may continue to use the Services as specified in this Agreement for the remainder of the Term, but are required to indicate Your lack of consent to such amendments in writing within 30 days of being notified.

10.4 Waiver.

The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

10.5 Notices.

We may periodically contact You and Your Users via email or other means to inform You and your Users about product updates, special offers or other information that We believe may be valuable. We will also notify You by email or other means, if Your Data is breached, accessed or disclosed inadvertently to a third party.

10.6 Severability.

If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force. The parties agree that neither party shall be deemed the drafter of this Agreement and, in the event, any provision in this Agreement is alleged to be ambiguous, such provision will not be construed in favour of one party on the ground that the provision was drafted by the other party.

10.7 Relationship Between the Parties. 

Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on behalf of the other without its prior written consent.

10.8 Assignment/Successors.

You may not assign or transfer this Agreement, in whole or in part, without Our prior written consent. Any attempted assignment or transfer in violation of this Section will be null and void. Notwithstanding the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

10.9 Non-Exclusive Remedies.

Except as set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

10.10 No Third-Party Beneficiaries.

This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.