Terms of Service
These Terms of Service (the "Agreement"), are entered into between:
Due Diligence Software Pty Ltd (the “Company”), a company governed by the laws of Australia, having its registered office located at Suite 3, 138 Main Street, Osborne Park WA 6017, Australia; and
the individual or entity (the “Customer”) that is identified on the Company’s online sign-up page for the Company’s services (the “Sign-up Page").
The Company has developed a proprietary software solution (the “Software”), which the Company delivers to its customers on a subscription basis (through the Internet) via a Software-as-a-Service web-based platform (“SaaS Platform”).
This Agreement governs the Customer’s use of the SaaS Platform.
If you are using the SaaS Platform during a Proof of Concept (“POC”) or trial, your use of the SaaS Platform during the period of the POC or trial (the “POC Period”) is governed by this Agreement. If you continue to use the SaaS Platform after the POC Period without a fully executed subscription agreement between the Company and you or your company, you understand and agree that this Agreement will also govern your ongoing use of the SaaS Platform.
By clicking the “I accept terms and sign-up” button displayed on the Sign-up Page, you affirm that you are at least 18 years of age. If the Customer is a company, you affirm that (i) you are an employee, director or agent of such company; (ii) that you have the legal authority to bind such company to the terms of this Agreement and will comply with them when using the SaaS Platform. When the Customer is a company, the term “you” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the SaaS Platform.
The Company and the Customer shall also hereinafter be referred to together as the “Parties” and individually as a “Party”.
NOW, THEREFORE, the Parties hereby agree as follows:
1. THE SOFTWARE AND SAAS PLATFORM
1.1 License Grant. Company hereby grants Customer with a non-exclusive, limited, non-transferable, revocable, non-sublicensable license to access and use the Software via the SaaS Platform:
(i) for Customer’s internal business purposes; and
(ii) in accordance with the applicable Subscription Plan (defined below) that Customer wishes to subscribe to, for the Subscription Term (defined below).
1.2 Subject to the terms and conditions of this Agreement, Company shall use commercially reasonable efforts to provide Customer with access to the Software in accordance with the features of the Subscription Plan (defined below) selected by Customer.
1.3 Customer acknowledges, understands and agrees that Company may, in its sole discretion, improve or update the Software to
(i) fix defects, bugs, or errors in the Software;
(ii) cure security vulnerabilities of the Software and/or;
(iii) comply with applicable law.
1.4 Restrictions. Customer shall/may not permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code, underlying structure, ideas, know-how or algorithms related to the Software; (ii) modify, translate, or create derivative works based on the Software; (iii) use the Software for timesharing or service bureau purposes; (iv) modify, remove or obstruct any proprietary notices or labels on the Software; or (v) use the Software in any manner so as to assist or take part in the development, marketing or sale of a product potentially competitive with Software. For the avoidance of doubt, the Software and the SaaS Platform are the Confidential Information (defined below) of Company.
1.5 For the avoidance of doubt, Company shall provide Customer with access to and use of the Software ONLY and shall not provide Customer with any legal advice, consultancy or associated services.
2. SUPPORT SERVICES
Company will provide Customer(s) with reasonable basic support services, free of charge, via telephone or email, aimed at addressing any queries and technical issues Customer may encounter or experience while using the Software.
3. NOT USED4. RESPONSIBILITIES OF THE PARTIES
4.1 Customer’s Responsibilities. Subject to the terms and conditions of this Agreement, Customer agrees to:
(i) provide Company with all necessary cooperation in relation to this Agreement;
(ii) use the Software and SaaS Platform only for Company’s internal business purposes and as provided under this Agreement;
(iii) provide Company with all necessary access to such information as may be required by Company in order for Company to comply with all applicable laws and regulations with respect to its activities under this Agreement;
(iv) provide Company with all necessary access to such information as may be required by Company in order for Company to ensure that the Customer’s Authorized Users use the Software in accordance with the terms and conditions of this Agreement and Customer shall be responsible for any of its Authorized User’s breach of this Agreement;
(v) provide Company with access to Customer’s software, hardware and data for the sole purpose of Company providing the Software;
(vi) obtain all necessary documentation, information, materials, authorizations, permissions and licenses necessary in respect of any of Customer’s third party software or technology to enable Company to provide Customer with access to the Software;
(vii) ensure that Customer’s network and systems comply with the relevant specifications provided by Company from time to time;
(viii) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Company’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
(ix) comply with all applicable local, state, national and international laws in connection with Customer’s use of the Software and SaaS Platform, including laws pertaining to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Company shall have no control over the content of the information transmitted by Customer through the Software and/or SaaS Platform;
(x) safeguard all electronic communications, including but not limited to business information, account registration, financial information, and all other data of any kind contained within emails or otherwise entered by Customer electronically while accessing and using the Software and SaaS Platform;
(xi) take commercially reasonable efforts to (a) promptly notify Company of any unauthorised access to or use of the Software and SaaS Platform, and (b) cooperate with and assist Company in preventing any such unauthorised access or use of the Software and SaaS Platform;
(xii) be solely responsible for the acts and omissions of Customer’s employees, contractors, and agents;
(xiii) use any and all data obtained from the SaaS Platform in compliance with all applicable Federal/State regulations, and acts. Customer acknowledges that Customer shall be solely responsible for any misuse/violation of any applicable laws; and
(xiv) maintain, at Customer’s expense, an appropriate and periodical back-up of Customer’s data.
4.2 When accessing and using the Software and SaaS Platform, Customer shall not:
(i) use any material, data or information which is made available by Company as part of the Software and SaaS Platform in a manner that infringes upon any copyright, trademark, patent, trade secret, or other proprietary right of Company and/or any third party;
(ii) upload files that contain malicious code, trojan horse, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of Company’s and/or a third party’s computer or property;
(iii) download, reproduce, display, perform, and/or distribute any file posted to the Software by Company that Customer knows, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed;
(iv) falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin/source of the Software or other material included in the Software and SaaS Platform and made available by Company to Customer;
(v) violate any applicable laws or regulations;
(vi) send or store infringing, obscene, threatening, abusive, defamatory, discriminatory or otherwise unlawful or tortious material, including material that violates privacy rights;
(vii) upload, post, reproduce, or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights; and
(viii) attempt to breach the security and/or authentication measures of the Software and SaaS Platform.
4.3 Customer shall be solely liable for any and all actions of Customer’s Authorized Users who were given access, by Customer, to the Software and SaaS Platform.
4.4 Company’s Responsibilities. Subject to the terms and conditions of this Agreement, Company agrees to provide Customer with access to the Software and SaaS Platform in accordance with the terms and conditions of this Agreement. Company reserves the right to deny Customer access to the Software and SaaS Platform at any time if Company deems, in its sole discretion, that such denial is necessary in order to ensure Customer’s compliance with this Agreement or to protect Company’s rights, property, and interests.
4.5 If Company, reasonably believes in its sole discretion that Customer is participating in fraudulent or illegal activities, Company may immediately suspend or terminate Customer’s or Customer’s Authorized User’s access to the Software and SaaS Platform.
5. SUBSCRIPTION PLANS, SUBSCRIPTION PLAN FEES, PAYMENT AND TAXES
5.1 Customer acknowledges that Customer must subscribe to/select one of Company’s subscription plans (“Subscription Plan(s)”) to be able to access and use the Software. Each Subscription Plan shall (i) include restrictions and requirements that outline the features of the Subscription Plan, and (ii) reference the applicable fee (“Subscription Plan Fee”). The features of each Subscription Plan are further detailed on Company’s website.
5.2 The Subscription Plan Fees corresponding to Customer’s selected Subscription Plan and to be paid by Customer to Company in consideration of Customer’s access to and use of the Software are stated on Company’s website.
5.3 Customer acknowledges and agrees that the Subscription Plan Fees corresponding to Customer’s selected paid Subscription Plan shall be (i) quoted and payable in Australian Dollars (USD); (ii) paid by Customer on time; and (iii) strictly non-refundable.
5.4 Customer will be billed on either a monthly or annual basis (“Billing Cycle(s)”) for the Subscription Plan Fees owed by Customer to Company in accordance with this Agreement. Billing Cycles shall be set on a monthly or yearly basis.
5.5 Payment of Customer’s selected Subscription Plan Fees shall be made by Customer to Company via credit or debit card.
5.6 Company may in its sole discretion and at any time, modify the Subscription Plan Fees. Any Subscription Plan Fee change will become effective at the end of the then-current monthly or annual Billing Cycle. Company shall provide Customer with reasonable prior notice of at least thirty (30) calendar days prior to effectively implementing any change in Subscription Plan Fees in order to give Customer the opportunity to cancel (in accordance with Section 10 of this Agreement) Customer’s Subscription Plan and/or the Agreement before such change becomes effective. Customer’s continued use of the Software after the Subscription Plan Fee change has come into effect shall constitute Customer’s agreement to pay the modified Subscription Plan Fee.
5.7 Customer agrees to notify Company of any billing queries and/or errors within thirty (30) calendar days after receipt by Customer of any invoice (submitted/sent by Company to Customer hereunder). Should Customer not notify Company of any billing queries and/or errors within such time period, this absence of notification on Customer’s part shall be deemed to constitute Customer’s waiver of Customer’s right to dispute such queries and errors following the expiration of such thirty (30) calendar day period. Customer acknowledges, understands and agrees that Company reserves the right to correct any errors in the Subscription Plan Fees, previously quoted by Company to Customer and for which Company received payment from Customer, (i) by correcting such error in the Subscription Plan Fees, or (ii) by issuing a credit note or corrected invoice to Customer.
5.8 Company does not guarantee that the Subscription Plans and the respective Software will be offered indefinitely and reserves the right, at its sole discretion, to (i) change the Subscription Plan Fees, and (ii) alter the features and options associated with any particular Subscription Plan.
5.9 Customer acknowledges and agrees that Company may, from time to time, add additional features or functionalities to the Software. As such, Customer’s access to and use of any additional features and functionalities to the Software may require the payment of additional Subscription Plan Fees by Customer.
5.10 Taxes. Unless stated otherwise, all Subscription Plan Fees and any other fees that may become due under this Agreement, owed to Company by Customer in consideration of Customer’s access to and use of the Software and SaaS Platform, shall be exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, whether disputed or not, including any value-added, sales, use or withholding taxes, assessable by any jurisdiction (“Taxes”). Customer shall be responsible for the payment of any and all Taxes (except for those based on Company's income) associated with Customer’s subscription to the Software and SaaS Platform. Customer hereby indemnifies and holds Company harmless from the payment of any Taxes and costs associated with the collection or withholding thereof, including penalties and interest. If Company is under a legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.10, the applicable amount shall be invoiced (by Company) to and paid by Customer unless Customer provides Company with a valid tax exemption certificate from the applicable taxing authority.
6. INTELLECTUAL PROPERTY
6.1 “Intellectual Property” shall mean the intellectual property of either Party, which shall include any developments, derivative works, deliverables, enhancements and/or modifications to any intellectual property defined as, but not limited to: any patents, trademarks, trade secrets, design, database, business process or methodologies, techniques, know-how, data, information or other intangible property. Each Party and/or its licensors own and shall retain all right, title and interest (for instance, without limitation, patent right, copyright, trademark right, trade secret right, moral right, design right, database right or any other intellectual property right or proprietary right) in and to its respective Intellectual Property.
6.2 Background Intellectual Property Rights. The Parties acknowledge that all Intellectual Property rights belonging to a Party prior to the execution of this Agreement or created by the Parties regardless of the execution of this Agreement shall remain vested in that Party.
6.3 Each Party shall take the appropriate steps and precautions for the protection of the other Party’s Intellectual Property and Confidential Information (defined below). Without limiting the generality of the foregoing, each Party will: (i) keep all forms or copies of Intellectual Property secure and use its best efforts to prevent any unauthorized use and access of/to a Party’s Intellectual Property; (ii) include in any copy of any Intellectual Property the appropriate notices of ownership; or (iii) to the extent practicable and only as instructed in writing, return or destroy the other Party’s Intellectual Property. Each Party agrees that it/she/he will immediately notify the other Party of any unauthorized use of such other Party’s Intellectual Property and of any potential or pending legal action in relation to any potential or actual infringement of such other Party’s Intellectual Property rights. The Party being notified (i) may, at its option and expense, assume control of such action with the other Party providing assistance relating to such action as may be reasonably requested by a Party, and (ii) will assist in enforcing any settlement or order made in connection with the action.
6.4 Customer’s Intellectual Property Rights. Any Customer’s data, information or other materials furnished to Company by Customer in connection with Customer’s use of the Software and SaaS Platform shall remain the sole property of Customer. All such materials shall be (i) released and returned by Company to Customer at the latest upon the termination or expiration of this Agreement, or (ii) destroyed upon Customer’s written request.
6.5 Company’s Intellectual Property Rights. Company and its licensors shall retain all rights, title and interest in and to all of its respective Intellectual Property used by Company in order to provide the Software and SaaS Platform to Customer under this Agreement. Any ideas, concepts, expertise, techniques, sequence, or organization relating to data processing developed during the Subscription Term (defined below) by Company, or jointly by Company and Customer, shall be the sole and exclusive property of Company.
6.6 For the avoidance of doubt, Company is and will be the sole and exclusive owner of all right, title, and interest in and to all Feedback, information, data, algorithms, software, results and other content that is derived from processing any data transmitted by or through the Software and SaaS Platform during the term of any active Subscription Plan the Client has subscribed to/selected (collectively, the “Analytics Data”), including all Intellectual Property Rights in such Analytics Data. To the extent Customer has any rights in the Analytics Data, Customer hereby irrevocably assigns to Company any and all rights at no additional consideration.
6.7 By sending Company any Feedback, Customer agrees tha:
(i) Customer’s Feedback does not contain any confidential or proprietary information belonging to any third party(ies);
(ii) Company is under no obligation of confidentiality, express or implied, with respect to the Feedback;
(iii) Company may have Feedback which is similar to Customer’s Feedback, already under consideration or in development;
(iv) Customer, and Customer’s Authorized Users, grants Company an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, without without (a) compensation, (b) any obligation to report on such use, and (c) any other restriction; and
(v) Customer irrevocably waives, and causes to be waived, against Company and its vendors and users any claims and assertions of any moral rights contained in such Feedback.
7. CONFIDENTIALITY
7.1 “Confidential Information” shall mean any know-how, trade secrets, information, data, materials or other confidential and/or proprietary information disclosed by one Party to the other under this Agreement that is either: (i) conspicuously marked or otherwise identified as ‘Confidential’ or ‘Proprietary’ at the time of disclosure; or (ii) should reasonably be understood by the receiving Party to be confidential based upon the nature of the information disclosed or the circumstances of the disclosure. Confidential Information includes any:
(i) business records and plans, user or client feedback, and online accounts;
(ii) form of scientific, technical or data information, website identification, passwords, technical and business information relating to disclosing Party’s proprietary ideas, software, business or otherwise;
iii) concepts, reports, data, knowledge, works in progress, information, trade secrets, trademarks, patentable ideas, copyrights, existing and/or contemplated products and services, development tools, specifications, software, maps, drawings, source code, object codes, flow charts, databases, inventions, website content, designs, logos, brochures, images schematics, research and development;
(iv) form of financial information, production, costs, profit and margin information, finances and financial projections, list or information about users, vendors, suppliers, business partners, business associates, customers or clients, marketing information, sales leads, strategic alliances, partners, and current or future business plans and models;
(v) terms and conditions of this Agreement; and
(v) personal identifiable information including but not limited to the name, contact details, address, date of birth, personal preferences, etc. related to any customers, employees, contractors, users or any other person whosoever.
7.2 The Parties acknowledge and agree that each Party will have access to certain trade-secrets and other non-public Confidential Information of the other during and in connection with the performance of its obligations hereunder, and hereby agrees not to disclose any Confidential Information to any third party and not to use any such Confidential Information for any purpose other than as strictly required for the purpose of performing its obligations under this Agreement. All such Confidential Information is and shall remain the exclusive property of the disclosing Party and no license shall be granted or implied with respect to such Confidential Information by reason of the other Party’s access to such Confidential Information. Each Party agrees to protect the Confidential Information of the other with the same standard of care and procedures used by such Party to protect its own Confidential Information of similar importance while at all times using the same standard of care.
7.3 Each Party shall take such sufficient precautions to enable such Party to comply with all the terms hereof and to ensure similar compliance thereof by each of their respective employees/personnel. Furthermore, each Party shall bind the Party’s respective employees/personnel to ensure and maintain complete and effective secrecy and confidentiality regarding any and all information whatsoever pertaining to the other Party and which comes to such Party’s knowledge in the course of performing its obligations under this Agreement.
7.4 Use and Compelled Disclosure of Confidential Information. A Party may use Confidential Information of the other Party: (i) to the extent reasonably necessary to exercise its rights and perform its obligations under this Agreement. Either Party may disclose the existence of this Agreement for the purposes of financing, audits, or internal processes. In the event that a Party receives a subpoena or other validly issued administrative or judicial notice requesting the disclosure of the other Party’s Confidential Information, it/she/he will, to the extent legally permissible, promptly notify the other Party and, if requested, tender to the other Party the defence of the subpoena or notice. If requested by the disclosing Party, the receiving Party will cooperate (at the expense of the requesting/disclosing Party) in opposing the subpoena or notice. Unless the subpoena or notice is timely limited, quashed or extended, the receiving Party will then be entitled to comply with the request to the extent permitted by Law.
7.5 Exclusions. Confidential Information shall not include information that was: (i) previously known to the receiving Party without an obligation not to disclose such information; (ii) independently developed by or for the receiving Party without use of the other Party’s Confidential Information; (iii) acquired by the receiving Party from a third-party which was not, to the receiving Party’s knowledge, under an obligation not to disclose such information; or (iv) is or becomes publicly available through no fault of the disclosing Party.
7.6 Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorised disclosure by such Party of any Confidential Information of the other Party and that such other Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
7.7 The Parties’ obligations arising under this Section 7 (Confidentiality) shall (i) survive the termination or expiration of this Agreement and (ii) remain indefinitely in force after the termination or expiration of this Agreement.
8. WARRANTY AND DISCLAIMER
8.1 THE SOFTWARE AND SAAS PLATFORM PROVIDED BY COMPANY UNDER THIS AGREEMENT SHALL BE PROVIDED IN A TIMELY AND PROFESSIONAL MANNER BY QUALIFIED PERSONNEL AND SHALL CONFORM TO THE STANDARDS GENERALLY OBSERVED IN THE INDUSTRY FOR SIMILAR SERVICES AT THE TIME SUCH SOFTWARE AND SAAS PLATFORM ARE PROVIDED.
8.2 DISCLAIMER. THE SOFTWARE AND SAAS PLATFORM PROVIDED BY COMPANY UNDER THIS AGREEMENT, OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF COMPANY ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND "AS AVAILABLE". COMPANY DOES NOT MAKE ANY OTHER REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND SAAS PLATFORM, OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NON INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT THE SOFTWARE AND SAAS PLATFORM OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT ARE FREE FROM BUGS, VIRUSES, HARMFUL COMPONENTS, ERRORS, OR DEFECTS, OR THAT THE OPERATION OF ANY OF THE FOREGOING WILL BE SECURE OR UNINTERRUPTED, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE AND SAAS PLATFORM. CUSTOMER SHALL NOT HAVE THE RIGHT TO PASS ON ANY REPRESENTATION OR WARRANTY OF COMPANY TO ANY THIRD-PARTY OR END USER, NOR DOES COMPANY PROMISE TO BACKUP ANY OF CUSTOMER’S DATA/INFORMATION/CONTENT. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. COMPANY SPECIFICALLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY, ORAL OR IN WRITING, CONCERNING THE VIABILITY, ENFORCEABILITY, OR COMPLIANCE WITH APPLICABLE LAWS IN RELATION TO THE SOFTWARE AND SAAS PLATFORM, AND THE USE BY CUSTOMER OF THE SOFTWARE IN A PARTICULAR COUNTRY, TERRITORY, OR REGION.
8.3 COMPANY AND ITS VENDORS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SOFTWARE AND SAAS PLATFORM INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE AND SAAS PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. COMPANY AND ITS VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT CUSTOMER AND/OR CUSTOMER’S DATA/INFORMATION/CONTENT MAY SUFFER, THAT ARE BEYOND COMPANY’S CONTROL.
8.4 EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION (I) THAT THE SOFTWARE AND SAAS PLATFORM (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF CUSTOMER’S CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO CUSTOMER; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT CUSTOMER OBTAINS THROUGH THE SOFTWARE AND SAAS PLATFORM.
8.5 While Company may collaborate with Customer’s third party vendors to resolve issues, Company shall not be responsible or liable for the functionality or support of Customer’s business, services, operations, or any warranties provided by the third party vendors to the Customer.
8.6 Mutual Warranties. Each Party hereby represents, warrants, and covenants that: (i) it/she/he has the authority and right to enter into this Agreement, and to perform its obligations under this Agreement; (ii) no consent, approval, or withholding of objection is required from any third-party or governmental authority with respect to the entering into or the performance of this Agreement; and (iii) it/she/he shall be solely responsible for complying with all applicable Federal, state, and local laws and regulations that pertain its business operation(s) within its specific industry.
8.7 8.7 Downtime. Customer acknowledges that the Software and SaaS Platform may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, conducted either by Company or by third party service providers, or due to other causes beyond Company’s reasonable control. Where reasonably possible, Company shall use reasonable efforts to provide Customer with advance written notice via e-mail as pertains to any scheduled service disruption.. Customer acknowledges that the Software and SaaS Platform may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, conducted either by Company or by third party service providers, or due to other causes beyond Company’s reasonable control. Where reasonably possible, Company shall use reasonable efforts to provide Customer with advance written notice via e-mail as pertains to any scheduled service disruption.
9. LIMITATION OF LIABILITY
9.1 Aggregate Liability NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER FOR ANY CLAIMS (INCLUDING THIRD-PARTY CLAIMS) ARISING FROM, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF LIABILITY (WHETHER IN CONTRACT OR TORT OR OTHERWISE), WILL EXCEED THE SUBSCRIPTION PLAN FEES PAID BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, MINUS ANY AMOUNTS PAID BY THE LIABLE PARTY DURING THAT SAME PERIOD FOR ANY PRIOR LIABILITY.
9.2 No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, RELIANCE OR PUNITIVE DAMAGES, FOR ANY LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT) OR REVENUE (OTHER THAN SUBSCRIPTION PLAN FEES PAYABLE UNDER THIS AGREEMENT), FOR ANY BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION OR DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR IS REASONABLY FORESEEABLE.
10. INDEMNIFICATION
10.1 Company shall defend, indemnify and hold Customer harmless (including by paying external attorneys’ fees and costs/expenses of defence) and pay any settlement to which Company consents in relation to any third party claim to the extent that such third party claim is arising from the Customer’s use of the Software and SaaS Platform infringing upon any intellectual property right of such third-party. Company’s defence and payment obligations will not apply, however, if the third party’s intellectual property infringement claim relates to or arises from: (i) Customer’s failure to use corrections or enhancements to the Software and SaaS Platform as made available by Company to Customer; (ii) Customer’s use of the Software or SaaS Platform in combination with any of Customer’s or third party’s product, technology, or information not owned or developed by Company; (iii) Customer’s violation of the terms and conditions of this Agreement; or (iv) Company’s compliance with any Customer’s specifications or requirements, including, without limitation, any functional specifications provided by Customer to Company.
10.2 Company may, at its expense and option in case of third party’s intellectual property infringement claim: (i) Company shall obtain the necessary rights from such third party, to permit Customer to continue to use the SaaS Platform or Software; (ii) replace the SaaS Platform and/or the Software with a non-infringing equivalent service or product; or (iii) modify the SaaS Platform or Software to make it non-infringing. As a condition of receiving any of the foregoing remedies, Customer must promptly notify Company in writing of the third-party claim and provide reasonable cooperation (at Customer’s own expense) and full authority to Company to defend or settle the claim or suit. Company will have no obligation to pay for any settlement or compromise of such third-party claim made without Company’s written consent. The remedies set out in this Section 9 constitute Customer’s sole and exclusive remedy and Company’s sole liability with respect to any infringement by Company of any third party’s Intellectual Property right arising.
10.3 Customer shall defend, indemnify and hold Company and its officers, directors, employees, and agents harmless from and against any and all third party claims, actions, liability, expenses (including reasonable attorneys’ fees), costs, or losses arising from: (i) Customer’s combination, operation or use of the Software with third-party technology; (iii) any misuse of the Software by Customer’s Authorized Users; (iii) the acts (or any failure to act) of Customer or Customer’s Authorized Users hereunder; (v) any breach by Customer of its obligations under this Agreement; (vi) any breach of security, service interruption and/or termination, that are directly related to the design, functionality, performance, or operability of the Software or SaaS Platform; or (vii) any third-party claim against Company for any breach of applicable data privacy laws and regulations.
11. TERM, SUSPENSION, TERMINATION AND EXPIRATION
11.1 This Agreement shall commence on the effective date of this Agreement and remain in force, for the duration of the Subscription Plan selected by Customer under this Agreement (“Subscription Term”) unless terminated in accordance with the provisions of this Agreement.
11.2 Suspension. Company may suspend or temporarily disable Customer’s access to and use of the Software and/or SaaS Platform if (i) Customer fails to make payment of the Subscription Plan Fee for Customer’s use of the Software and/or SaaS Platform on time; (ii) Company suspects Customer of partaking in any illegal activity; (iii) Company reasonably believes that Customer has violated the terms of this Agreement; or (iv) requested by law enforcement authorities or other government agencies. Customer acknowledges and agrees that Company shall not be liable to Customer or any third party for any loss or damages caused to Customer or any third party as a result of the suspension by Company of Customer’s access and use of the Software and SaaS Platform. For the avoidance of doubt, any suspension by Company of the Software and SaaS Platform shall not relieve Customer from Customer’s obligation to make payment of the Subscription Plan Fees.
11.3 Termination for Cause. Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement without liability to the other if:
(i) the other Party commits a material breach of any of the terms of this Agreement and (if such breach is remediable) fails to remedy such breach within thirty (30) calendar days of the date upon which the non-breaching Party has been notified in writing of such breach;
(ii) an order is made, or a resolution is passed by any competent authority for the winding up of the other Party, or if circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other Party;
(iii) an order is made by any competent authority for the appointment of an administrator to manage the affairs, business and property of the other Party, or legal documents are filed by a third party with a court of competent jurisdiction for the appointment of an administrator of the other Party;
(iv) a receiver is appointed by an authority of competent jurisdiction, or if any other third party takes possession of or sells the other Party's assets;
(v) the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
(vi) the other Party ceases, or threatens to cease, to trade; or
(vii) the other Party takes any similar action in any jurisdiction as a consequence of the other Party incurring debt.
11.4 Effect of Termination and Expiration. Customer acknowledges that upon the termination or expiration of this Agreement, or upon the cancellation of Customer’s selected Subscription Plan, Customer shall cease to access and use the Software and SaaS Platform. Any termination or expiration of this Agreement shall not relieve Customer from Customer’s obligation to make payment of the Subscription Plan Fees owed up until and including the effective date of such termination or expiration.
12. FORCE MAJEURE Neither Party shall be liable for, or be considered to be in breach of or in default under this Agreement on account of, any delay or failure to access/use the Software and SaaS Platform as a result of any cause or condition beyond such Party's reasonable control, including, but not limited to: fire, explosion, power blackout, terrorism, earthquake, storm, flood, wind, drought or acts of God; epidemic and pandemic, court order; act, delay or failure to act by civil, military or other governmental authority; strike, lockout, labor dispute, riot, insurrection, sabotage or war; failure, interruption or degradation of any telecommunications or transmission lines; unavailability of required parts, materials or other items; acts or omissions of Internet traffic carriers, or act, delay or failure to act by the other Party or any third-party; provided that such Party uses reasonable efforts to promptly overcome or mitigate the delay or failure to perform. If one of the causes or conditions listed in this Section 16 delays or prevents a Party’s performance, that Party will promptly notify the other and describe the anticipated duration of the delay or prevention, as well as the steps being taken to overcome or mitigate the delay or failure to perform.
13. GOVERNING LAW AND JURISDICTION In the event of any disagreement between the Parties with respect to any aspect of this Agreement, the Parties agree to discuss in good faith to reach an amicable resolution prior to starting any mediation/litigation/legal proceedings against each other. This Agreement shall be construed and enforced in accordance with the laws of Australia. The Courts located within New South Wales, Australia shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. Both Parties hereby submit to the jurisdiction of said Courts for purposes of any such suit or proceeding and waive any claim that any such forum is an inconvenient forum.
14. GENERAL PROVISIONS
14.1 Non-Exclusivity. The Parties’ respective obligations under this Agreement are non-exclusive and nothing herein is intended to restrict Customer from accessing or using any other third-party’s products or services, even if such products or services are similar to the Software and SaaS Platform provided by Company.
14.2 Publicity Rights. Customer hereby grants Company the right to include Customer as a customer in Company’s promotional and marketing material. Customer may deny Company such right at any time by submitting a written request, sent via email to info@doitwithdue.com, requesting to be excluded from Company’s promotional and marketing material.
14.3 Severability. If any of the provisions or portions of this Agreement are held to be invalid under any applicable statute or rule of Law, such provisions shall be deemed to be omitted from this Agreement without in any way invalidating or impairing the other provisions of this Agreement.
14.4 No Waiver. Save for Section 5.7 and 6.7(v), a Party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement shall be in writing, specify the provision to be waived and signed/executed by the Party agreeing to the waiver.
14.5 No Third-Party Beneficiaries. This Agreement are not intended to and shall not be construed to give any third-party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with any term, agreement or provision contained herein or contemplated hereby.
14.6 No Assignment. Customer shall not assign or otherwise transfer Customer’s rights and obligations under this Agreement without the prior written consent of Company. Any attempt to make such an assignment without Company's consent shall be void. Company’s consent shall not be unreasonably withheld. However, this Agreement shall be binding upon and inure to the benefit of Company, its affiliates, or any corporation or other entity to which Company may (i) transfer all or substantially all its assets and business, or (ii) assign the rights and obligations under this Agreement, in which case references to “Company" as used herein shall mean such affiliate, corporation or other entity.
14.7 No Agency, Partnership, or Employment Relationships. Customer acknowledges that Company is merely a service provider. Accordingly, there is no employment, agency, joint venture, or partnership relationship between Customer and Company.
14.8 Notices. Except as otherwise provided under this Agreement, any notice required or permitted to be given by Customer will be effective only if it is in writing and sent via email to info@doitwithdue.com. Any notices provided to Customer by Company shall be sent to the email address provided by Customer to Company, or to such other address as Customer may specify from time to time. Notices shall be deemed to be given twenty-four (24) hours after the email is sent, unless the Party sending such notice is notified that the email address is invalid.
14.9 Entire Agreement. This Agreement represents the entire agreement between the Parties relating to the subject matter hereof.