Service Agreement
AGREEMENT
As a result of you (“Customer”) and TRACKALACTIC PTY LTD a company incorporated under the laws of the Commonwealth of Australia (ACN 633843580) whose main office is at 7-9 Lanceley Place, Artarmon, NSW, 2064 (“TRACKALACTIC”) signing or otherwise accepting an Order Form in connection with TRACKALACTIC Services, these are the terms and conditions (referred to in and amended by any Order Form) upon which TRACKALACTIC shall supply those services to you. In the absence of any other written and signed agreement intended by the parties to be the sole agreement with respect to TRACKALACTIC Services, these terms (and any applicable Order Form) shall apply to the exclusion of any other terms and conditions, including any such terms forming part of or purporting to apply by reason of any purchase order or process initiated or issued by you to TRACKALACTIC in connection with TRACKALACTIC’ Services
1. DEFINITIONS
1.1 In these terms, unless the context otherwise requires, the following words and expressions mean
“ACDC” Australian Commercial Disputes Centre
“Affiliate” any person, partnership, joint venture, corporation, subsidiary, or other form of enterprise, controlling, controlled by, or under common control with, the Customer or TRACKALACTIC
“Agreed Form” the form and terms of a document agreed, entered into or accepted (including without limitation by any process for acceptance used by the Customer on any TRACKALACTIC website) for the purposes of identification in connection with this agreement
“Commencement Date” the date upon which the URL to enable the Customer to have access to its Customer account on the SaaS Service is despatched to the Customer by TRACKALACTIC or as otherwise specified in any Order Form
“Confidential Information” non public information that a Disclosing Party designates as being confidential to a Receiving Party or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party and includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party software or hardware or any products, Disclosing Party’s business policies, plans or practices, its personnel, customers or suppliers and information received from others that Disclosing Party is obligated to treat as confidential
“Contracted Processor” TRACKALACTIC or any third party TRACKALACTIC contracts with to process Customer Personal Data in connection with the Services, including any outsource web site hosting entity that TRACKALACTIC may use to provide Services
Customer Contact(s)” information technology or other suitably qualified, competent and trained Customer employees or contractors nominated by the Customer to act on its behalf in connection with Software and Service Support and any project under this agreement
“Customer Content” any editorial content or intellectual property provided to TRACKALACTIC by the Customer for the development of or integration into or use with or communication through the Software or Services under these terms
“Customer Data” data or information of the Customer posted on or submitted to the SaaS Service by the Customer or a Customer User
Customer Personal Data” information or an opinion, including sensitive information, about an identified employee, contractor or customer of the customer regardless of whether it is true or recorded in material form, or such an individual who is reasonably identifiable and includes information such as names, addresses, emails, credit card details, tax file numbers and health information.
“Customer Specific Development” any software configuration, development or other technical services provided by TRACKALACTIC and requested by the Customer which create or modify the standard version of Software from time to time
“Customer User” an employee or contractor of the Customer who has satisfactorily completed training and has an individualised login identification and password to have access to, use of and enter data using the SaaS Service
“Database” any database that TRACKALACTIC has spent, or continues to spend, material time and resources on the selection and arrangement of data as an intellectual creation on any website or computer system or network it uses in connection with any SaaS Service, excluding any database created solely by operation of any third party software
“Disclosing Party” a party to these terms and its Affiliates who disclose Confidential Information to another party
“eligible data breach” as defined under relevant Privacy Laws and shall include unauthorised access to or disclosure of Customer Personal Information held by a Contract Processor or Customer Personal Information that is lost by a Contract Processor in circumstances where unauthorised access or disclosure is likely to occur and, assuming such a disclosure did occur, that would be likely to result in serious harm to any of the individuals to whom the information relates
“Goods and Services Tax”or”GST” as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)
“Incident” the inability of the Customer to use a normally available facility or function of the Software through the SaaS Service due to a fault in the Software or the SaaS Service for which TRACKALACTIC is responsible under these terms
“Incident Priorities” as specified in www.trackalactic.com.au/support priorities
“Intellectual Property” all intellectual property rights protected by law throughout the world whether registered or not, including without limitation all copyrights, copyright registrations and applications, trademark rights, registrations and applications, patent rights (including the right to apply therefor), patent applications (including the right to claim priority under applicable international conventions) and all patents issuing thereon, industrial property rights, inventions (whether or not patentable), together with all utility and design, know-how, specifications, trade names, mask-work rights, trade secrets, moral rights, author’s rights, algorithms, rights in packaging, goodwill, corporate, trade and product branding and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of New South Wales or of any other state, country or legal jurisdiction
“Minimum Term” any minimum number of Subscription Periods agreed to by TRACKALACTIC and the Customer in any Order Form
“TRACKALACTIC Intellectual Property” TRACKALACTIC Intellectual Property work product comprising or created pursuant to the Services, the Software or any Project Document which may include original work and materials undertaken by TRACKALACTIC either previously or in performing its obligations under this agreement
“Order Form” any electronic or hard copy document in Agreed Form setting out from time to time such matters as the Software, Fees and Services to be provided by TRACKALACTIC and in the event of any conflict or inconsistency between applicable Order Forms the latter signed by the Customer and TRACKALACTIC shall take precedence and be effective between the parties
“Privacy Laws” the Privacy Act 1988 (Cth) as this Act is for the time being in force and includes any subordinate legislation made under such Act and any provision amending, superseding or re-enacting it, including by the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth)
“Project Document(s)” any documentation that the parties agree will be the output from project meetings conducted under and approved by the Customer pursuant to clause 3 which, without limitation, may include any Order Form, Software specification or pre-requisite document
“Project Manager” a suitably skilled representative of TRACKALACTIC nominated in writing to the Customer by TRACKALACTIC to manage the day to day performance of TRACKALACTIC’ obligations under this agreement or any Order Form
“Receiving Party” a party to these terms and its Affiliates who receive Confidential Information from another party
“SaaS Service(s)” the provision for the Customer by TRACKALACTIC or its contractors of the System Environment to allow the Customer over the internet to access and use the Software subject to the service support and the service inclusions and exclusions set out in www.trackalactic.com.au/support
“SaaS Service Support” the support and maintenance services and facilities for the SaaS Service specified in www.trackalactic.com.au/support
“Service(s)” the services agreed to be provided by TRACKALACTIC to the Customer under these terms as specified in any Order Form including without limitation the scoping, development, delivery, implementation, support and maintenance of any Software, SaaS Service, any applicable third party software, training and other services or the link or access to any Third Party Service
“Service Levels” the service levels for the SaaS Service set out in www.trackalactic.com.au/service levels
“Software” TRACKALACTIC’s own software applications and processes specified in any Order Form and supplied by TRACKALACTIC to the Customer or installed by TRACKALACTIC on any SaaS Service for use by the Customer under these terms
“Software Functionality” the facilities and functions of the Software that are set out in the applicable specification sheet published by TRACKALACTIC from time to time or agreed in or under any Order Form
“Subscription Fee(s)” the fees and charges specified in any Order Form to be paid by the Customer to TRACKALACTIC from time to time under these terms for the SaaS Service and other Services to be provided for the term of any Subscription Period
“Subscription Period” any period in respect of which the fees set by TRACKALACTIC from time to time for the SaaS Services shall have been paid, or agreed unconditionally to be paid, by the Customer under these terms including any such period specified in any Order Form
“Suggestions” comments for improvements or modifications or other feedback which the Customer may from time to time provide to TRACKALACTIC with respect to Confidential Information concerning the Services or the Software
“System Administrator” any Customer User(s) who has satisfactorily completed all relevant training and is approved by TRACKALACTIC to exercise system administration rights as defined by TRACKALACTIC from time to time in connection with the SaaS Service
“System Environment” a system of integrated computer hardware, operating systems software, computer peripherals and facilities provided by TRACKALACTIC or its contractors to allow the Customer over the internet to access and use the Software
“Technical Dispute” a dispute between the parties that is of a technical nature concerning the interpretation of these terms, or any document created pursuant to or incorporated by reference into these terms or relating to the functions or capabilities of the Software or the Services or any similar or related matter or that the parties agree is of a technical nature
“Third Party Service(s)” any third party internet accessible service specified in any Order Form to which TRACKALACTIC provides to the Customer on any SaaS Services website or other communications facilities a link or access
“Third Party Service(s) Support” the support services to be provided by TRACKALACTIC in connection with Third Party Services, as specified in www.trackalactic.com.au/third-party-services-support from time to time
“Update” an updated version of the Software released generally to its commercial users other than a version which includes substantial new functionality as compared to the version already in use by the Customer or which is intended for use with a different operating system or different equipment to that which the Customer is currently licensed or permitted to use the Software with under this agreement or any relevant license
1.2 Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and un-incorporate and (in each case) vice versa
1.3 Where any provision in or schedule or appendix to this agreement or any project document refers to or requires any action consent or notice to be in writing this shall deemed to include or allow as the case may be writing created transmitted or stored in electric form including without limitation by email.
2. TRACKALACTIC KEY RESPONSIBILITIES
2.1 TRACKALACTIC shall, subject to and in accordance with these terms and any applicable Order Form
2.1.1 provide or procure the provision of any the Services specified in any Order Form
2.1.2 from the Commencement Date and during any Subscription Period provide or procure the provision of the SaaS Service in accordance with and subject to the Service Levels, the Incident Priorities, any Customer site specific conditions set out in any Order Form and the SaaS Service Support
2.1.3 with the full co-operation and assistance of the Customer install, configure and allow access to any Software which TRACKALACTIC has agreed to host on the SaaS Service
2.1.4 if applicable, provide project meetings under clause 3 and with the full co-operation and assistance of the Customer prepare and deliver any agreed Project Documents
2.1.5 if applicable, with the full co-operation and assistance of the Customer ensure that any Customer Content is fairly and accurately incorporated into the Software or Services
2.2 If requested and paid for by the Customer, TRACKALACTIC shall provide training in the use and operation of Software on the SaaS Service (and if offered by TRACKALACTIC, training in the use and operation of Third Party Services) at its standard fees and charges (including expenses) from time to time. TRACKALACTIC will use reasonable efforts to train the Customer’s employees in the subject matter of the particular training course taking into account the level of skill and competence of each of the Customer’s employees attending such a course but does not guarantee any resultant level of competence of any of the Customer’s employees who attend such training. At all times that TRACKALACTIC is providing support services to the Customer, it will ensure that its employees using the Software and any applicable third party software on or in connection with the SaaS Services are trained to a sufficient level to use them competently
2.3 TRACKALACTIC shall
2.3.1 provide the Services with all reasonable skill and care
2.3.2 provide suitably skilled and trained and knowledgeable personnel to carry out the Services
2.4 Other than as expressly provided in these terms, TRACKALACTIC gives no other warranties and any warranties or conditions that might be implied by statute or otherwise into these terms, including but not limited to warranties and conditions of title, non-infringement, merchantability and fitness for a particular purpose, are expressly excluded to the fullest extent permitted by law
3. PROJECT DELIVERY AND DOCUMENTS
3.1 TRACKALACTIC shall hold such project meetings as the parties may agree designed to elicit the Customer’s precise requirements for any Software or Services, such project meetings to be attended by such of the Customer’s staff as the Customer may designate. The Customer acknowledges and agrees that it is essential for TRACKALACTIC to deliver Software, Services or produce any Project Documents in a timely and professionally competent manner that the Customer ensures that at least one Customer Contact attends and contributes effectively at and provides all information reasonably requested by TRACKALACTIC at all such project meetings
3.2 If a Project Document is prepared by TRACKALACTIC at the request of the Customer, TRACKALACTIC shall be entitled to be paid for its time spent in connection with preparing such document and in performing other work under these terms up to and including any date that the parties agree to cease or suspend the delivery of Services under this agreement
3.3 One Customer Contact will manage the Customer’s interests and obligations under these terms. During the performance of all projects agreed to be undertaken by the parties hereunder each party agrees to respond promptly to any issues or requirements referred to it by the other party relating to the performance of the Services or any other obligations under these terms, and shall seek to resolve any problems arising in relation to the provision of the Services as quickly and effectively as possible. The parties shall meet or attend at teleconferences, webinars or other agreed arrangements at appropriate regular intervals in order to monitor the performance of the parties’ obligations and the progress of work with the aim of ensuring as best as practicable that completion of projects or work takes place in accordance with any applicable Project Document
4. CUSTOMER KEY RESPONSIBILITIES
4.1 Unless otherwise agreed in writing with TRACKALACTIC, the Customer will be solely responsible and liable for all Subscription Fees and other Service charges
4.2 The Customer shall, subject to and in accordance with these terms and any applicable Order Form
4.2.1 obtain maintain and provide to TRACKALACTIC all necessary authorisations consents, licences and services required for TRACKALACTIC to possess, install, operate, maintain, host, use or integrate any third party software (not being software that is part of the System Environment) required by the Customer for use in conjunction with the Software on the SaaS Services
4.2.2 if applicable, deliver in a timely manner any Customer Content and any required updates of Customer Content to TRACKALACTIC for inclusion in the Software or the Services
4.2.3 provide TRACKALACTIC with any information which it may reasonably require from time to time to enable TRACKALACTIC to perform its obligations under these terms or any Order Form
4.2.4 procure and/or supply, and if necessary, install, support and maintain all software, licences, hardware, network configuration and infrastructure, services and environmental and operational conditions required from the connection to the internet of TRACKALACTIC’ System Environment providing the SaaS Services to and at the Customer’s premises for it or any Customer User to efficiently and effectively use the SaaS Service, including any such specific requirements set out in the Order Form
4.2.5 promptly notify TRACKALACTIC of any changes the Customer requires in the number of active system components such as RFID readers, or Customer Users or the names of System Administrators authorised by TRACKALACTIC to have access to the SaaS Services in respect of any Subscription Period subject to any minimum agreed from time to time
4.2.6 promptly notify TRACKALACTIC of any additional, unusual, abnormal or seasonal fluctuations and demands the Customer may make on the SaaS Services or the details of changes to the Customer’s business operations, policies or procedures that may adversely affect any obligation TRACKALACTIC has under these terms or the Services
4.2.7 ensure that only adequately trained and authorised Customer Contacts are permitted to contact TRACKALACTIC in connection with Service support issues and that Customer Users operate the SaaS Service, Software and applicable Third Party Services in accordance with this agreement and operating and security procedures, guidelines, codes of conduct and processes reasonably specified from time to time by TRACKALACTIC
4.2.8 maintain at all times, two adequately trained Customer Contacts to deal with Service support issues, to provide reasonable support to TRACKALACTIC in managing and monitoring of the quality of the SaaS Services and in planning and implementing any agreed enhancements to Services
4.2.9 be deemed to have accepted the SaaS Service for all purposes under this Agreement upon any use thereof for commercial production
4.3 The Customer acknowledges and agrees that TRACKALACTIC’ ability to deliver the Services also depends upon the Customer’s timely cooperation and prompt response to issues or requirements referred to it in connection with the Services, as well as the accuracy and completeness of any information the Customer provides. TRACKALACTIC is not responsible for any loss suffered by the Customer if the Customer does not provide it with this cooperation and information
4.4 The Customer shall, for the purposes of this agreement and if required by any Order Form, afford to the authorised personal of TRACKALACTIC during normal working hours or as otherwise agreed access to any agreed customer premises and shall provide adequate free working space and such other facilities at such premises as may reasonably requested by TRACKALACTIC to provide applicable Services. The Customer shall comply with its obligations under applicable health and safety regulations with respect to the provision of such access and facilities to TRACKALACTIC. TRACKALACTIC will take all practical steps to ensure that its personnel will, whenever on Customer’s premises, obey all reasonable security and health and safety standards, procedures and directions notified to it by the Customer
4.5 The Customer acknowledges and agrees that it is solely responsible for complying with any laws or paying any taxes duties and tariffs applicable in any way to its use of the SaaS Services (other than taxes on the net income of TRACKALACTIC) and will hold harmless protect indemnify and defend TRACKALACTIC and its subcontractors from any claim action suit penalty tax fine or tariff arising from such use of the SaaS Services or exercise of internet electronic commerce and/or any failure to comply with any such laws taxes duties and tariffs. This indemnity will survive any termination of these terms
5. FEES AND PAYMENT
5.1 Subscription Fees and other fees for Services shall be invoiced to and paid by the Customer in advance of the period to which they relate or otherwise at the discretion of TRACKALACTIC or, if applicable, in accordance with any payment profile set out in any Order Form. Invoices and payments shall be in Australian Dollars ($) unless otherwise agreed. Except for any payment due and payable as set out in any Order Form, all payments shall be made by the Customer within fourteen (14) days of the date of the appropriate tax invoice issued by TRACKALACTIC
5.2 Unless otherwise agreed in any Order Form, all Services shall be charged on a time and materials basis. Any estimated fee is based on the number of days estimated by TRACKALACTIC as being required for the provision of the relevant agreed Services. Subject to clause 5.7, TRACKALACTIC shall be entitled to charge the Customer for any additional days required in order to complete the provision of agreed Services. TRACKALACTIC shall also be entitled to charge for additional days attributable to any changes agreed by the parties to Services to be delivered under these terms or to any breach of these terms by the Customer
5.3 Unless otherwise agreed in any Order Form, the Customer shall reimburse TRACKALACTIC for any reasonable expenses necessarily incurred by TRACKALACTIC in connection with the provision of the Services
5.4 All fees for Services are exclusive of Goods and Services Tax or other Government imposed excises or taxes (if any) which shall be paid by the Customer upon demand at the rate and in the manner for the time being prescribed by law. All sums payable to TRACKALACTIC under this agreement shall be paid free and clear of all deductions or withholdings unless the deduction or withholding is required by law. If any deduction or withholding is required by law to be made from any such sum the Customer shall pay such additional amount as shall be required to ensure that the net amount received by TRACKALACTIC will equal the full amount which would have been received by it had no such deduction or withholding been made
5.5 If any sum payable under this agreement is not paid by the due date, TRACKALACTIC reserves the right to charge interest on any overdue amount (not subject to a notified bona fide dispute) from the due date until payment in full at the rate (both before and after judgment) of 4% per annum over the Commonwealth Bank of Australia base lending rate from time to time in force. Such interest shall be paid on demand by TRACKALACTIC. To be excluded from the late payment charge a bona fide disputed invoice amount shall be notified in writing to TRACKALACTIC within fourteen days of receipt of the relevant invoice
5.6 Except where otherwise agreed by the parties in writing, the Services shall be provided between the hours of 9.00am and 5.00pm Monday to Friday excepting New South Wales statutory holidays. Where the Services are provided outside these times at the written request of the Customer, TRACKALACTIC may increase its then current per hour and per day rates by 50% or by 100% respectively in the case of Services provided on a Sunday or New South Wales statutory holiday
5.7 As soon as practicable upon becoming aware that the number of days estimated for the provision of any agreed Services will need to be exceeded to enable the relevant Service to be completed or delivered TRACKALACTIC shall notify the Customer of the fact and the reasons therefore and provide to the Customer TRACKALACTIC’ best estimate of the additional days required to complete the provision of the relevant Service. TRACKALACTIC shall not be entitled to invoice the Customer for any days in excess of those estimated with respect to any Service without the consent of the Customer provided that the Customer acknowledges and accepts that the withholding of any such consent by it may result in the relevant Service not being completed or delivered
5.8 Once a date for the delivery of Services has been agreed by the Customer and TRACKALACTIC then both parties will take all reasonable steps to prevent that date being cancelled or postponed. In the event that a date for delivery of a Service (other than the SaaS Service) is cancelled or postponed by the Customer for any reason and, having made all reasonable endeavours to do so TRACKALACTIC is unable to redeploy to alternative paid services resources it has allocated to the delivery of such Services on such date, the following charges shall apply
5.8.1 if cancelled or postponed within 4 working days of the agreed date there will be payable by the customer a charge calculated at 100% of the service fees that TRACKALACTIC would otherwise been entitled to charge the Customer for the delivery of services on that date
5.8.2 if cancelled or postponed between 4 and 8 working days of the agreed date there will be payable by the customer a charge calculated at 50% of the service fees that TRACKALACTIC would otherwise been entitled to charge the Customer for the delivery of services on that date
TRACKALACTIC reserves the right to cancel or postpone any training course in the event of circumstances beyond its control, in which case its liability will be limited to refunding any fees paid in respect of the delivery of that course on that date
5.9 The Customer acknowledges and agrees that if any invoice (not subject to a bona fide dispute) is not paid on the due payment date then TRACKALACTIC shall be under no obligation to continue to provide any Services relevant to such invoice to the Customer and delivery of such services may be suspended (without prejudice to TRACKALACTIC’ rights under clause 12) unless and until the relevant invoice shall be paid in full. The Customer shall indemnify TRACKALACTIC against all legal and other fees and expenses incurred or charged by it in relation to the collection of any overdue accounts under this agreement or to re-activate any Service suspended under this clause 5.9
6. RIGHTS IN SERVICES, SOFTWARE AND DATA
6.1 Subject to any special terms that TRACKALACTIC may agree with the Customer in any Order Form, the Customer acknowledges and agrees that TRACKALACTIC Intellectual Property whenever created shall remain the exclusive property of TRACKALACTIC and the Customer shall have no rights in respect thereof save as may be granted to it by TRACKALACTIC pursuant to these terms or in accordance with any licence or agreement which TRACKALACTIC may enter into with the Customer from time to time. For the avoidance of doubt, TRACKALACTIC Intellectual Property shall include, without limitation, original work specifically undertaken by TRACKALACTIC for the purposes of fulfilling its obligations under these terms and in order to meet any facilities or functionality required by the Customer in any Software whether or not such original work is identified under any Order Form, specification or other documentation. The Customer agrees to use the TRACKALACTIC Intellectual Property only as provided in these terms and to not use it to develop software for third parties or for any other purpose without the prior written authorisation of TRACKALACTIC
6.2 The Customer acknowledges and agrees that, subject to clauses 6.3 and 14.2
6.2.1 all TRACKALACTIC Intellectual Property and all intellectual property rights of any kind in any Database shall be the exclusive property of TRACKALACTIC
6.2.2 TRACKALACTIC has spent, and continues to spend, considerable time and resources to collate, compile and reformat the contents of any Database and accordingly all Intellectual Property rights of any kind in such contents shall be the exclusive property of TRACKALACTIC
6.2.3 TRACKALACTIC grants to the Customer a non transferable perpetual licence to possess and use for its own internal purposes only all data, reports and information, including without limitation Customer Data, derived from any Database by the Customer through its lawful and proper use of the SaaS Services during such Subscription Periods in respect of which the Customer shall have paid to TRACKALACTIC in advance all applicable Subscription Fees
6.3 TRACKALACTIC acknowledges and agrees that copyright in Customer Content and Customer Data may belong to the Customer or a third party and for the avoidance of doubt asserts no claim pursuant to these terms inconsistent with any such rights
6.4 If TRACKALACTIC provides or makes available to the Customer as part of or in connection with SaaS Services data reports or information the use of which is subject to conditions or restrictions, third party or otherwise notified to the Customer, the Customer agrees to comply with such conditions or restrictions
6.5 The Customer agrees that it will not make more copies of data reports or information provided to it or made available to Customer as part of or in connection with SaaS Services than is reasonably necessary for its own internal purposes and shall only publish and circulate such reports or information within its own organisation
6.6 The Customer agrees
6.6.1 to not copy data reports or information provided or made available to Customer as part of or in connection with SaaS Services to create a complete or material reconstruction of any Database
6.6.2 to not use data reports or information provided or made available to Customer as part of or in connection with SaaS Services to provide any service competing with Software based services
6.7 The Customer shall
6.7.1 not remove or interfere with any trademarks, copyright or trademark notices affixed or installed by TRACKALACTIC on any Service or copy of the Software or other TRACKALACTIC Intellectual Property
6.7.2 without prejudice to the foregoing take all such other reasonable steps to protect the confidential information and intellectual property rights of TRACKALACTIC and the TRACKALACTIC Intellectual Property in its possession or control from access use or copying not authorised by these terms
6.8 Subject to clause 14, if, at any time that TRACKALACTIC is providing the SaaS Services to the Customer, the Customer requests that TRACKALACTIC provide it with a copy of the Customer Data held by TRACKALACTIC on the SaaS Services, TRACKALACTIC shall provide the Customer with a copy of such Customer Data as at the date of the request or at such other date as is agreed, provided that the customer shall have paid to TRACKALACTIC
6.8.1 any data transfer fee specified for such data transfer from time to time or as otherwise agreed (together with the cost of any medium upon which such data is transferred)
6.8.2 all other invoices issued by TRACKALACTIC with respect to the Services provided to the Customer
6.8.3 any fees or charges at TRACKALACTIC’ then applicable rates raised by TRACKALACTIC for the provision of any assistance reasonably requested by the Customer and provided or to be provided by TRACKALACTIC in connection with the transfer of such Customer Data
6.9 The Customer acknowledges and agrees that the SaaS Services may use Customer User activity monitoring, metering and analysis software to avoid any unintentional violation of licence or Service usage terms and that such software may access and use the Customer’s internal network, servers and internet connections for such purposes and for the purpose of accessing and transmitting licence or usage related data at the time of installation, activation, registration or update of Services, Software and any applicable third party software and validating the authenticity of such licence or usage related data to protect TRACKALACTIC against unauthorised, unlicensed or illegal use of the SaaS Services
6.10 Provided that all Customer Data disclosed or made available pursuant to this clause 6.10 to any third party shall not identify such data with the Customer nor specifically identify any individual, company or entity, TRACKALACTIC may access, process, use and disclose to third parties data posted by or on behalf of the Customer on any website or computer network TRACKALACTIC uses in connection with the SaaS Services (including Customer personnel data) as reasonably necessary to operate or maintain the SaaS Services or the Software (including virus scanning), to comply with obligations of confidentiality TRACKALACTIC has to the Customer or other customers, to evaluate or improve the performance and implementation of and to promote and market SaaS Services or the Software, to perform statistical analyses and other data mining activities and to present such data in whatever format TRACKALACTIC requires to measure, amongst other things, interest in and use of SaaS Services or the Software and to develop and design new products and services
6.11 Clause 6 shall survive any termination of these terms
7. SERVICE USE
7.1 The Customer unconditionally represents warrants and undertakes that all Customer Content including without limitation any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to TRACKALACTIC for the development of or integration into or use with or communication through the Services, the Software or any applicable third party software
7.1.1 are owned by the Customer or that the Customer has permission from the rightful owner to use such Customer Content in the Services, Software or any applicable third party software in the manner and for the purposes required or approved by the Customer from time to time
7.1.2 are in no way whatsoever a violation or infringement of any third party Intellectual Property, right of privacy or publicity or any other rights of any person and that they are not obscene, libellous or defamatory or in any other way unlawful and will not in any way inhibit restrict or impair the free and/or unrestricted performance by TRACKALACTIC of any rights or obligations it has under these terms
7.2 The Customer agrees that it will
7.2.1 possess the legal right and ability to enter into and comply with these terms and any licence conditions attaching from time to time to the use of the Software or any applicable third party software
7.2.2 use the Services, the Software and any applicable third party software for lawful purposes only and in accordance with all applicable laws, regulations and TRACKALACTIC policies notified to the Customer from time to time
7.2.3 not attempt to decompile, reverse engineer or hack any website or computer network TRACKALACTIC uses in connection with the SaaS Services or to defeat or overcome any encryption and/or other technical protection methods implemented by TRACKALACTIC with respect to any such website or network and/or data transmitted, processed or stored by TRACKALACTIC or other users of such website or network
7.2.4 not use any automatic or manual device or process nor take any steps (including penetration testing, without the prior written authority of TRACKALACTIC) to interfere with or in any manner compromise any security measures or the proper working of any website or computer network TRACKALACTIC uses in connection with the SaaS Services
7.2.5 be solely responsible and liable for the security of login passwords and identification procedures for Customer Users using the SaaS Services or any website or computer network TRACKALACTIC uses in connection with the SaaS Services and that they do not use any other individual’s or entity’s login or identity or any unauthorised or inadequately licensed computer, device or facility to access or use such Services, website or computer network
7.2.6 ensure that only System Administrators login and exercise System Administrator rights and privileges on the SaaS Services or any website or computer network TRACKALACTIC uses in connection with the SaaS Services and that each such user performs only such specific functions or activities as defined by and agreed with TRACKALACTIC from time to time on any such website or network
7.2.7 not collect any information or communication about TRACKALACTIC or users of SaaS Services by monitoring, interdicting or intercepting any process of the Services, the Software or any applicable third party software
7.2.8 not use any process, facility, device, software code or software instruction that is designed or intended to be used to provide a means of surreptitious or unauthorised access or that is designed or intended to distort, delete, damage or disassemble the Software, any applicable third party software or service or any website or computer network TRACKALACTIC uses in connection with the SaaS Services
7.2.9 not use the Software or the SaaS Service to develop, generate, transmit or store information that infringes any third party’s intellectual property or other proprietary right or is defamatory, harmful, abusive, obscene or hateful or performs any unsolicited commercial communication not permitted by applicable law or is harassment or a violation of privacy or threatens others or impersonates any other person or steals or assumes any person’s identity (whether a real identity or online nickname or alias)
7.2.10 procure that any Customer User will comply with clauses 7.2.2, 7.2.3, 7.2.4, 7.2.6, 7.2.7 and 7.2.8 and
7.2.11 if requested by TRACKALACTIC on reasonable grounds, provide true, accurate, current and complete information on its use or the use by any Customer User of any website or computer network TRACKALACTIC uses in connection with the SaaS Services
7.3 TRACKALACTIC reserves the right to involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in actions that may involve breaches of this clause 7
7.4 If TRACKALACTIC has reasonable grounds to suspect that the Customers representations, warranties or promises are inaccurate or breached, TRACKALACTIC may suspend (without prejudice to any right to terminate) the Customer’s rights, benefits or services under or terminate these terms and any licence attaching from time to time to the use of the Software or Services
7.5 The Customer hereby agrees to hold harmless protect indemnify and defend TRACKALACTIC and its subcontractors from any liability (including legal and administrative fees and costs on a full indemnity basis) or any claim, prosecution or suit, threatened or actual, arising from any breach by the Customer of its obligations under this clause 7 or from any use by TRACKALACTIC of Customer Content authorised by the Customer
7.6 The foregoing warranties, promises and indemnities in this clause 7 shall survive any termination of these terms
8. DISPUTE RESOLUTION
Each party shall use its best endeavours to resolve amicably and expeditiously any dispute which may arise between them concerning these terms, any Order Form or any documents incorporated by reference therein. If a dispute cannot be resolved amicably within 7 days of such dispute being notified in writing by one party to the other for the purposes of this clause then the dispute shall be determined as follows
8.1 If the dispute is a Technical Dispute then such dispute shall be referred to the next scheduled project team meeting or a meeting of the Project Manager and Customer Contact convened for this purpose
8.2 If such meeting cannot resolve a Technical Dispute to the satisfaction of both parties then the dispute will be referred as a matter of urgency to an appropriately qualified senior manager or director of each party
8.3 If such senior managers or directors cannot resolve a Technical Dispute within 21 days of the meeting referred to in clause 8.1 or such other period that they may agree then such a dispute must be referred for final settlement to an expert nominated jointly by the parties or, failing such nomination within 14 days of either party’s written request to the other for such referral, the parties agree to settle such dispute by expert determination administered by the ACDC. The ACDC expert determination shall be conducted in Sydney in accordance with ACDC Rules for Expert Determination operating at the time of referral and for such purposes the terms of such rules are hereby incorporated into these terms. No party may commence any court proceedings or arbitration in relation to any Technical Dispute arising out of this agreement until it has attempted to settle the dispute by such mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay
8.4 Non technical disputes shall be referred as a matter of urgency to the managing directors or appropriate senior management of each party and if they cannot resolve such dispute within 21 days of it being referred to them then the dispute shall be determined by the New South Wales Courts and the parties hereby submit to the exclusive jurisdiction of those courts for such purpose
9. LIABILITY AND LIMITATIONS
CUSTOMER’S ATTENTION IS EXPRESSLY DRAWN TO THE PROVISIONS OF THIS CLAUSE
9.1 Limitation of liability.
The obligations accepted by TRACKALACTIC in clause 2.3 are in lieu of all other warranties or conditions of any kind, express or implied, regarding any software, services, data, reports or documentation including any SaaS Services provided or procured by TRACKALACTIC and including warranties or conditions of quality, performance, non-infringement, merchantability or fitness for a particular purpose. Nor are there any warranties created by course of dealing, course of performance, or trade usage. Further TRACKALACTIC does not represent or warrant that the Software, any SaaS Services or any applicable third party software or service will always be available, accessible, uninterrupted, timely, secure, accurate, complete, error-free, or will operate without packet loss, nor does TRACKALACTIC warrant any connection to or transmission from the internet
The Software, SaaS Services and any applicable third party software or service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. TRACKALACTIC is not responsible and shall have no liability of any kind for any delays, delivery failures or other damage or loss resulting in any way from such use
TRACKALACTIC accepts no liability of any kind whatsoever, including liability for negligence, for the continuing existence, operation, interoperability, facilities or functions or consequences direct or indirect of any Customer using the internet or any other electronic communications facility to access the SaaS Services
In no event shall TRACKALACTIC be liable for indirect, consequential, or incidental damages (including damages for loss of business profits or anticipated savings, business interruption or loss of business information) however caused (including negligence) arising out of the relationship between TRACKALACTIC and the Customer even if it has been advised of the possibility of such damages
In any event TRACKALACTIC’ cumulative liability under these terms or any transaction contemplated hereunder or for any software data report or information or service provided to the Customer or any defect or failure therein or arising from any court of competent jurisdiction holding any of the above warranties or disclaimers or limitations of liability invalid, including any cause of action in contract, tort or strict liability, shall be limited to the amount of fees paid by the Customer to TRACKALACTIC under these terms during the 12 months prior to such event. TRACKALACTIC’ limitation of liability is cumulative with all TRACKALACTIC expenditures to address liability being aggregated to determine satisfaction of the limit. The Customer releases TRACKALACTIC from all obligations, liabilities, claims or demands in excess of the limitation. The parties acknowledge that other parts of these terms rely upon the inclusion of this clause 12 and the resulting allocation of risks
Nothing in these terms shall exclude or limit the liability of TRACKALACTIC, its service entities and personnel for fraud or where such exclusion or limitation is prohibited by applicable law, and then only to the extent of the prohibition
9.2 Customer acknowledges and agrees that TRACKALACTIC has no liability of any nature whatsoever
9.2.1 to any person for the content of any third party communications publications or sources from which any data, reports or information is provided through Customer’s use of any Service or
9.2.2 for such data, reports or information including without limitation its accuracy, quality, integrity, reliability or appropriateness for any purpose and the Customer shall be solely responsible and liable for any use it makes of such data, reports or information including any breach of copyright or other right obligation or duty recognised by the laws of any jurisdiction
9.3 TRACKALACTIC does not give any opinions or advice concerning the use or non use of any data reports or information provided or available to Customer through its use of any Service. Such data reports or information may need further expert or specialist advice or interpretation to be obtained by the Customer before they can be fully or partly understood or assessed or use made of or reliance placed on them. TRACKALACTIC accepts no liability for any claim notified to it more than six months after the date of receipt by the Customer from TRACKALACTIC of any such data report or information in respect of which the claim arises
9.4 Notwithstanding any other provision of these terms TRACKALACTIC does not warrant that use or operation of the Software, the SaaS Service or any third party software or service will be uninterrupted or error-free
9.5 As some jurisdictions do not allow some of the exclusions set out in this clause 9, some of these exclusions may not apply to you. In the event that any court of competent jurisdiction rules any other limitation of liability invalid or unenforceable, TRACKALACTIC’s total aggregate liability shall not exceed the total sum which TRACKALACTIC may recover with respect to its liability for such loss or damage under its professional indemnity insurance (which at the date of this agreement is with respect to such insurance not less than $1,000,000 for any one claim or series of claims arising out of one incident or event)
9.6 For the avoidance of doubt, time shall not be of the essence of this contract. If TRACKALACTIC shall fail to provide access to or use of the Software, any Service or any applicable third party software or service by any applicable agreed date, other than as a consequence of any act or omission of the Customer (whether or not such act or omission constitutes a breach of these terms) or a third party over which TRACKALACTIC has no control or responsibility, then TRACKALACTIC shall provide such resources as may be at its disposal and reasonably required in order to provide access to or use of such software or service within the shortest possible time thereafter and compliance by TRACKALACTIC with this clause 9.6 shall be in full and final settlement of any liability it may have for any loss or damage suffered by the Customer as a result of such failure by TRACKALACTIC
9.7 The Customer and TRACKALACTIC agree that all terms and limitations of these terms, including the warranty and liability limitations and exclusions, are fair and reasonable in light of the amounts to be paid by the Customer, the nature of the Services, the strength of the bargaining position of each party, the alternative ways the Customers needs could have been met and the potential benefits and risks for both party in entering into these terms
9.8 Notwithstanding any other provisions contained herein, where any Act of Parliament implies any term into this agreement, and that Act avoids or prohibits provisions in a contract excluding or modifying such term, that term shall be deemed to be included in this agreement, but each party’s liability for breach of that term shall be limited in one or more of the ways (at such party’s option) permitted by section 68A(1) of the Trade Practices Act 1974 (Cth)
10. FORCE MAJEURE
Notwithstanding anything else contained in these terms, neither party shall be liable for any delay in performing its obligations under these terms or any Order Form if such delay is caused by circumstances beyond its reasonable control and any delay caused by any act or omission of the other party (whether or not such act or omission constitutes a breach of these terms) or a third party provided however that any delay by a sub-contractor or supplier of the party so delaying shall not relieve that party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned. The performance of the affected party’s obligations shall be suspended during the period that the relevant circumstances persist and, if applicable to any obligation under these terms or any Order Form, the affected party shall be granted an extension of time for performance equal to the period of the delay. Except where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of these terms and by law) any costs arising from such delay shall be borne by the party incurring the same. Both parties will in any event use all reasonable endeavours to mitigate the impact of any event of force majeure and to recommence performance of their obligations under these terms as soon as reasonably possible
11. CONFIDENTIALITY
11.1 Definition of Confidential Information and Exclusions.
If any party has any doubts about what constitutes Confidential Information then such party agrees to consult with the other party before acting in any manner that may breach its obligations under these terms
Confidential Information shall not include any information, however designated, that
11.1.1 is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party
11.1.2 became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to or prior to or in contemplation of these terms
11.1.3 became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party
11.1.4 is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information or
11.1.5 constitutes Suggestions (as defined in clause 11.4 of these terms)
11.2 Obligations Regarding Confidential Information.
Receiving Party shall
11.2.1 refrain from disclosing any Confidential Information of the Disclosing Party to third parties for ten (10) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party
11.2.2 take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party and shall procure that all of its directors, employees, professional advisers and sub-contractors who have access to any information of the disclosing party to which the obligations of clause 11 apply shall be made aware of those obligations
11.2.3 not disclose any Confidential Information to its sub-contractors without first obtaining their written agreement to confidentiality obligations no less onerous than those set out in this clause 11
Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order, provided that Receiving Party either
11.2.4 gives the Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or
11.2.5 obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in clause 11.2.4
Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this clause 11 by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure
Upon termination of these terms for any reason, Receiving Party shall, at Disclosing Party’s request, return all originals,
copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify destruction of the same
11.3 Miscellaneous.
The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing 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
All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein
11.4 Suggestions.
The Customer may from time to time provide Suggestions to TRACKALACTIC. Both parties agree that all Suggestions are and shall be given entirely voluntarily. Suggestions, even if designated as confidential by the Customer, shall not, absent a separate written agreement, create any confidentiality obligation for TRACKALACTIC. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, TRACKALACTIC shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Suggestions provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise
12. TERMINATION
12.1 Unless otherwise agreed, any SaaS Service shall commence on the relevant Commencement Date and shall continue thereafter only during such periods in respect of which the applicable Subscription Fee shall have been paid in full to TRACKALACTIC unless and until otherwise validly terminated under these terms. Unless the parties otherwise agree in writing, at the end of any Subscription Period, or Minimum Term if applicable, this agreement and the Services will automatically be extended for a subsequent minimum Subscription Period unless the Customer or TRACKALACTIC gives not less than three calendar months notice of termination with effect at the expiry of the then current Subscription Period
12.2 Either party may terminate these terms by written notice if
12.2.1 the other party commits any breach of any provision of these terms or any effective Order Form which is capable of remedy (including for the avoidance of doubt any breach referred to in clause 12.1.2) and that other party fails to remedy the breach within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied
12.2.2 the other party commits any breach of any provision of these terms which constitutes a material breach (material breach for this purpose meaning a breach that has caused or, with the passage of time, will cause substantial harm to the interests of the aggrieved party or if it involves knowing and unauthorised infringement of the aggrieved party’s intellectual property, or if it involves knowing or grossly negligent unauthorised disclosure or use of the aggrieved party’s confidential information, or if it involves a continuing failure after warning to pay any undisputed fees when due, or if the aggregate effect of non-material breaches by the same party satisfies these standards for materiality)
12.2.3 the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order (or have an administrator appointed) or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business
12.2.4 there are no outstanding Services agreed to be provided under these terms
12.3 Upon any termination of these terms
12.3.1 provisions regarding fees and expenses, rights arising from Services, confidentiality and protection of intellectual property, limitations of liability, obligations on termination and any provisions specified as surviving in any Order Form will remain in effect
12.3.2 subject as otherwise provided in these terms and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under these terms
13. GENERAL
13.1 Neither party has been induced to enter into these terms by a statement or promise which it does not contain. These terms and any applicable Order Form constitutes the entire agreement between TRACKALACTIC and the Customer with respect to the supply of Services and supersedes all previous communications, representations and agreements either written or oral (save for fraudulent misrepresentation) with respect thereto. This shall not exclude any liability which a party would otherwise have to the other party in respect of any statement made fraudulently by that party prior to the date of these terms. The application of any general terms and conditions upon which the Customer trades or which it seeks to impose by inclusion in any purchase order or by way of course of trading or otherwise are excluded and shall be of no effect
13.2 The Customer may not assign, transfer or otherwise dispose of any of its rights or obligations under these terms without the prior written consent of TRACKALACTIC such consent not to be unreasonably withheld or delayed. Subject to the foregoing, these terms will bind and inure to the benefit of any successors and assigns. TRACKALACTIC may use subcontractors in the performance of the Services but will remain liable to the Customer in accordance with this agreement for the Services provided
13.3 This agreement shall be governed by and construed in accordance with the laws of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeals from those courts in respect of any proceedings in connection with this agreement and may not seek to have any proceedings removed from the jurisdiction of New South Wales on the grounds of forum non conveniens
13.4 Each provision of these terms shall be construed separately and notwithstanding that the whole or any part of any such provision may be held by any body of competent jurisdiction to be illegal invalid or unenforceable the other provisions of these terms and the remainder of the provision in question shall continue in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision
13.5 During the period during which TRACKALACTIC is providing the Services and for a period of 9 months thereafter neither party shall (whether personally or by its agent and whether for itself or on behalf of any other person, firm or company) recruit, solicit, induce or seek to induce any employee or contractor of the other party involved in the performance of the Services or obligations under these terms to leave its employment or terminate or breach its contract with such other party, provided however, that neither party will be precluded from engaging in general recruiting techniques that do not target the employees of the other party and from employing any person responding to such general solicitation. In the event that a party is in breach of this clause 13.5 it shall pay to the party which has suffered loss as a result of such breach (the “innocent party”), by way of a genuine pre-estimate of the innocent party’s damages, a sum calculated at the total aggregate value of fees, salary and other benefits paid to the employee or contractor concerned by the innocent party during the last 6 months of such employee’s employment or contractor’s engagement with the innocent party
13.6. The relationship of TRACKALACTIC to the Customer is solely that of independent contractor, and nothing contained herein is intended or will be construed as establishing an employment, joint venture, partnership, commission agent or other business relationship between the parties
13.7 Any variation of these terms must be in writing, expressly state that it forms part of the contractual arrangements between the parties and be signed by an authorised representative of each of the parties. No term or provision hereof will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented
13.8 The Customer agrees that TRACKALACTIC may refer to the Customer as a customer of TRACKALACTIC and as a user of its Software in TRACKALACTIC marketing and public relations material. For the avoidance of doubt, this clause 13.8 does not give either party the right to disclose Confidential Information
13.9 The parties confirm their intent not to confer any rights on any third parties by virtue of this agreement
13.10 TRACKALACTIC in its sole discretion may accept, by notice in writing to the Customer to that effect, that a facsimile or scanned copy of an original signature transmitted or emailed to it by the Customer is effective to create a binding agreement as if the document bearing the original signature was sent to it
14. PRIVACY AND DATA PROTECTION
14.1 The Customer acknowledges that in connection with the performance of its obligations under this Agreement any Contract Processor may carry out processing on Customer Personal Data. TRACKALACTIC shall, in connection with Customer Personal Data
14.1.1 carry out such operations in compliance with any applicable Privacy Laws in force from time to time
14.1.2 notify the nominated representative of the Customer in accordance with the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) of any eligible data breach
14.1.3 take all commercial steps expeditiously to remedy any eligible data breach and mitigate its consequences, taking into consideration all reasonable requests of the Customer
14.1.4 in response to any eligible data breach carry out a privacy information assessment in accordance with the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) in consultation with an affected customer
14.1.5 make any appropriate notification to the Office of the Australian Information Commissioner and, in consultation with the Customer, make an appropriate notification to any third parties affected by an eligible data breach
14.1.6 maintain a data breach response plan in accordance with the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) and carry out appropriate testing of this plan on a regular basis
14.2 The Customer acknowledges that it is solely responsible for the creation of all Customer Personal Data upon which any Contracted Processor carries out processing under this Agreement. The Customer shall comply with all its obligations under applicable Privacy Laws and make obtain and maintain all necessary notifications authorisations and consents the Customer is required to have for the processing of Customer Personal Data to be carried out by any Contracted Processor under this Agreement. TRACKALACTIC acknowledges that Customer Personal Data in the possession of any Contracted Processor shall at all times remain the property of the Customer
14.3 The Customer
14.2.1 instructs TRACKALACTIC (and authorises TRACKALACTIC to instruct any other Contracted Processor) to process Customer Personal Data, and
14.2.2 in particular, to transfer Customer Personal Data to any country or territory as necessary for the performance of Services and otherwise in connection with the performance of TRACKALACTIC’s obligations under this agreement, and
14.3.3 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in clause 14.3.1
14.4 The Customer may vary the instruction given by clause 14.3 with respect to the processing of Customer Personal Data at any time by written notice to TRACKALACTIC provided that TRACKALACTIC shall have no liability of any kind to the Customer for any loss or damage suffered by or claim made by any person against the Customer arising directly or indirectly from TRACKALACTIC complying with such notice
15. NOTICES
15.1 Any document notice claim or demand to be given served or made by either party to the other in connection with these terms shall be sufficiently given served or made by delivering or sending the same by hand or courier, recorded delivery or registered air mail post, facsimile or email to the registered office or any notified address of the party to whom it is addressed
15.2 Any such document notice claim or demand shall be deemed to be given served or made
15.2.1 if delivered, at the time of delivery
15.2.2 if sent by courier, at the expiration of 12 hours of the same having been despatched
15.2.3 if posted, at the expiration of 2 days after the envelope containing the same shall have been posted
15.2.4 if sent by facsimile, upon completion of transmission
15.2.5 if sent by email, upon completion of transmission, provided a confirmation notice is also sent by one other method contemplated by this clause 15.2
16. ELECTRONIC AGREEMENTS
The Customer acknowledges and agrees that
16.1 by accessing, using, receiving or downloading any Software and by making electronic transmissions to TRACKALACTIC in connection therewith this agreement and any other licence, usage or other conditions attaching from time to time to the use of Software or Services are legally binding upon it whether or not an authorised employee agent or contractor of the Customer clicked on any electronic button or such similar links as may be designated by TRACKALACTIC to accept this agreement or gain access to and use any Software or Service using the internet or other electronic forms of communication
16.2 pursuant to any applicable statutes, regulations, rules, ordinances or other laws, it accepts the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, contractual terms, records of transactions and other data initiated or completed through electronic means with TRACKALACTIC and
16.3 it hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention or filing of electronic or non-electronic records