Software as a Service Agreement

 

This Software as a Service Agreement (Agreement) is between the applicable customer (referred to as you or Customer) and Site Diary Pty Ltd (ABN 40 612 148 599), its successors and assignees (referred to as “we”, us, our or SaaS Provider) and together the Parties. This Agreement is available on the Site.

 

This Agreement forms the agreement under which the SaaS Provider has agreed to grant a licence to the Customer to use the SaaS Services. Please read this Agreement carefully. If you have any questions, please contact us using the contact details below, before you place an order with us. You indicate your acceptance of this Agreement by ticking the online acceptance box (or similar button) that is presented to you at the time of your order on our Site.  You have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.

SaaS Provider reserves the right to make changes to this Agreement at any time, effective upon the posting of modified Agreement on the Site. SaaS Provider will make every effort to communicate these changes to you via email prior to the change. If you have reasonable grounds to believe that the varied Agreement will be detrimental to your rights, you may cancel your account and terminate this Agreement in accordance with the termination clause below. It is your obligation to ensure that you have read, understood and agree to the most recent Agreement available on our Site.

This Agreement incorporates the Privacy Policy and Website Terms of Use, in each case, as amended from time to time, which are available on the Site.

 

1.          DEFINITIONS AND INTERPRETATION

1.1       Definitions

In this Agreement:

Authorised User means the user(s) permitted to use the SaaS Services including but not limited to the Customer’s Personnel or such other third parties identified to SaaS Provider;

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Queensland;

Business Hours means 9am to 5pm on a Business Day;

Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;

Commencement Date is the date of this Agreement;

Confidential Information means the terms of this Agreement and all know-how, financial information, technical information and other commercially valuable or sensitive information whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to a Party including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, Services, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter, which is marked as confidential or which a Party regards as confidential, proprietary or of a commercially sensitive nature but does not include information which:

(a)         is lawfully in a Party’s possession prior to its disclosure to a Party by the other;

(b)         enters the public domain other than as a result of any unauthorised disclosure;

(c)         information which is or becomes lawfully available to a Party from a third party who has the lawful power to disclose such information to that Party on a non-confidential basis; or

(d)         is independently developed by a Party;

Consequential Loss means any loss of actual or anticipated profits, loss of revenue, savings, opportunity, goodwill, customer, reputation, publicity, data or use;

Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems;

Data means all of the information, documents and other data provided by the Customer or their Personnel to SaaS Provider, any content uploaded by the Customer or Personnel to the SaaS Provider’s System, or otherwise accessed by SaaS Provider in providing the Services;

Development Fee means the fee agreed by the Parties for any Development Services in accordance with clause 4;

Development Services means the services to be provided by SaaS Provider pursuant to this Agreement for the development of the additional functionality relating to the SaaS Services; 

Fee means the appropriate fee corresponding to the particular Services and number of Authorised Users that the Customer wishes to access for the applicable subscription term as set out on the Site;

Force Majeure means any event or circumstances beyond the reasonable control of a Party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it:

(a)         would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and

(b)         results in a Party being unable to perform an obligation under this Agreement on time;

Free Trial means a temporary right to use the SaaS Services at no charge during the permissible Free Trial period and in accordance with this Agreement;

Intellectual Property Rights means any and all intellectual and industrial protection rights throughout the world including copyright (past, present and future copyrights and rights in the nature of or analogous to copyright), inventions, patents, designs, registered and unregistered trade marks, know-how and circuit layout rights, whether registrable or not, anywhere in the world;

Loss means any loss, damage, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind;

Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party;

Products means hardware or software;

Professional Services means professional and technical consultancy services provided by the SaaS Provider;

Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth);

SaaS Licence is defined in clause 3.1;

SaaS Services means the Software as a service, as amended by any Development Services;

Services means the SaaS Services, Support Services, Professional Services and any Development Services, to be provided or licensed by SaaS Provider to the Customer on the terms and conditions set out in this Agreement;

Site means SaaS Provider’s website, www.sitediaryapp.com;

Software means the software in used to provide the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties;

Support Services are defined in clause 6;

System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network; and

Term means the term of this Agreement as set out in clause 16.

1.2       Interpretation

In this Agreement, unless expressed to the contrary:

(a)         words in the singular include the plural and vice versa;

(b)         headings are for convenience and do not affect the interpretation of this Agreement;

(c)         any gender includes the other gender;

(d)         a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule, as the case may be, of this Agreement;

(e)         if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

(f)          a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;

(g)         if a word or phrase is defined in this Agreement then any other grammatical form of the word or phrase shall have a corresponding meaning;

(h)         a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;

(i)          “includes” and similar words mean includes without limitation;

(j)          no clause of this Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(k)         a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation;

(l)          a reference to this or any other agreement includes the agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the parties;

(m)       a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; and

(n)         a reference to time is to local time in Queensland.

 

2.          SERVICES

On or from the Commencement Date and during the Term, SaaS Provider agrees to provide the Services in accordance with the terms of this Agreement.

2.1       The Customer agrees SaaS Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by SaaS Provider to the Customer.

2.2       SaaS Provider reserves the right to change or remove features of the SaaS Services from time to time. Where there is any material alteration to the SaaS Services in accordance with this clause, SaaS Provider will provide the Customer with 20 Business Days’ notice and the Customer agrees that any material alteration is at SaaS Provider’s discretion.

2.3       The Parties agree that SaaS Provider:

(a)         will supply the Services on a non-exclusive basis;

(b)         the Services may use third party products;

(c)         does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and

(d)         is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.

2.4       SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.

 

3.          SAAS SERVICE LICENCE

3.1       In consideration for payment of the Fees, SaaS Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with Service Provider’s intended purpose for the SaaS Services (SaaS Licence).

3.2       The Customer agrees that the SaaS Licence:

(a)         commences from the Commencement Date or the day the Customer is granted access to the SaaS Services by SaaS Provider, whichever occurs first;

(b)         permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and

(c)         permits the Customer and its Authorised Users to access and use the SaaS Services.

LICENCE RESTRICTIONS

3.3       The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with SaaS Provider’s Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:

(a)         resell, assign, transfer, distribute or provide others with access to the SaaS Services;

(b)         “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;

(c)         copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software (except as expressly permitted by the Copyright Act 1968 (Cth)); or

(d)         alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.

3.4       The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Australia or the jurisdiction in which the Customer or its Personnel are located.

 

4.          DEVELOPMENT AND PROFESSIONAL SERVICES

4.1       SaaS Provider may provide Development Services to the Customer in accordance with this Agreement in consideration for a Development Fee.

4.2       Where the SaaS Provider agrees to provide Development Services, the SaaS Provider will provide the Development Services in accordance with this clause 4.

4.3       If the Customer requires any changes during the Term of this Agreement to the scope, functionality or nature of the SaaS Services to be provided, or the elements of the Software used to provide the SaaS Services, which the SaaS Provider reasonably believes requires additional time, material or resources to be provided by the SaaS Provider, the procedure to follow for such Development Services will be as follows:

(a)         the Customer will notify the SaaS Provider of any changes it requires;

(b)         following notification, the SaaS Provider will provide the Customer with written notice in the form of a statement of work covering:

(i)          the changes required to the SaaS Services;

(ii)        the Development Services required by such changes; and

(iii)       the Development Fee required to undertake such Development Services;

(c)         If the Customer agrees to:

(i)          the changes to the Services;

(ii)        the Development Services; and

(iii)       the Development Fees,

this Agreement will be considered varied to include such changes as set out in the notice provided by SaaS Provider pursuant to this clause.

4.4       Any Professional Services will be as agreed between the Parties in a statement of work as to the scope, fees payable, time periods for the services and any other relevant matters.

 

5.          DATA

5.1       The Customer grants to SaaS Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:

(a)         to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;

(b)         for diagnostic purposes;

(c)         to test, enhance and otherwise modify the Services whether requested by the Customer or not;

(d)         to develop other Services and products including for other customers (by using aggregated data or otherwise); and

(e)         as reasonably required for the performance of SaaS Provider’s obligations under this Agreement.

5.2       The Customer represents and warrants that any and all Data supplied by the Customer or otherwise accessed by SaaS Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable.

5.3       The Customer acknowledges and agrees that:

(a)         any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. SaaS Provider is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;

(b)         SaaS Provider may relocate the Data to another jurisdiction. In each case, SaaS Provider will give the Customer 15 Business Days’ notice and use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;

(c)         SaaS Provider is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and

(d)         SaaS Provider is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.

5.4       The Customer agrees to indemnify and hold SaaS Provider harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of SaaS Provider or its Personnel.

 

6.          SUPPORT

6.1       During the Term, SaaS Provider will provide the Support Services during Business Hours provided that:

(a)         any support will be provided by email to Customer Personnel and Authorised Users only;

(b)         support does not cover training;

(c)         where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to SaaS Provider all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault); and

(d)         fees will not be charged for answering the Customer or the Customer’s representative’s support questions regarding performance or use of the Services, up to a maximum of four (4) hours per month, after such time consulting fees may be charged by SaaS Provider at its standard hourly rate.

 

7.          SAAS PROVIDER ADDITIONAL RESPONSIBILITIES AND OBLIGATIONS

7.1       SaaS Provider must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorised access, use, copying or disclosure.

 

8.          CUSTOMER RESPONSIBILITIES AND OBLIGATIONS

8.1       The Customer will provide all required materials as required by SaaS Provider from time to time for SaaS Provider to perform the Services.

8.2       The Customer must, at the Customer’s own expense:

(a)         provide all reasonable assistance and cooperation to SaaS Provider in order to enable SaaS Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow SaaS Provider to provide the Services;

(b)         use reasonable endeavours to ensure the integrity of the Data;

(c)         if necessary permit SaaS Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;

(d)         ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and

(e)         make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.

8.3       The Customer is responsible for its use of the Services and must ensure that no person uses the Services:

(a)         to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;

(b)         to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or

(c)         in any way that damages, interferes with or interrupts the supply of the Services.

8.4       The Customer acknowledges and agrees that:

(a)         it is responsible for all users using the Services including its Personnel and any Authorised Users;

(b)         its use of the Services will be at its own risk;

(c)         if SaaS Provider wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to SaaS Provider or make any such changes to the Customer Environment, that SaaS Provider reasonably requires; and

(d)         SaaS Provider may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.

 

9.          PROHIBITED USE

9.1       The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:

(a)         use the SaaS Services to violate any legal rights of any person, Customer or other entity in any jurisdiction;

(b)         use the SaaS Services in relation to crimes such as theft and fraud;

(c)         use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;

(d)         make any unauthorised copy of any copyrighted material owned or licenced by SaaS provider;

(e)         introduce malicious programs into the SaaS Provider System (e.g., viruses, worms, trojan horses, e-mail bombs);

(f)          reveal the Customer’s account password to others or allow use of the Customer’s account to those who are not the Customer’s Personnel or Authorised Users;

(g)         use the SaaS Services to make fraudulent offers of goods or services;

(h)         use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;

(i)          use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the SaaS Services;

(j)          send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages;

(k)         use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”) is strictly prohibited; and

(l)          use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.

 

10.       PAYMENT

10.1    The Customer agrees to pay the SaaS Provider the Fees via the payment methods set out on the Site which include the third party payment processor, Stripe.

10.2    Recurring charges are billed in advance of service. The Customer authorises the SaaS Provider to automatically bill the Customer on the date of renewal of each subscription period.

10.3    If a Customer cancels a Free Trial before it expires, the Customer’s credit/debit card will not be charged. After the Free Trial, if the Customer elects to continue to have access to the SaaS Services chosen, then the Customer’s credit/debit card will be billed accordingly.

10.4    All amounts are stated in Australian Dollars and unless otherwise stated, all Fees include Australian GST (where applicable).

10.5    If a Customer’s home country is not Australia and the currency of its bank or credit card issuer is not in Australian dollars (Foreign Currency), the Customer may be subject to additional fees and charges including but not limited to cross border, exchange or currency conversion fees and/or transaction fees (Charges) by our third party payment processor, the Customer’s bank and/or credit card issuer. Such Charges vary by country and/or currency and are subject to change at the discretion of our third party payment processor, the Customer’s bank and/or credit card issuer (as applicable).

10.6    Access to the Services will require the Customer to provide information, including name, email and organisation, and to register for an account.

10.7    It is the Customer’s responsibility to keep the details of its account, including user name and password, confidential. The Customer is liable for all activity on its account, including any purchases made using its account details, if relevant. The Customer may not share its account details with any other person apart from Authorised Users.

10.8    The Customer agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. The SaaS Provider reserves the right to suspend or terminate any account and access to the Site and Services if any information provided proves to be inaccurate, not current, incomplete or otherwise does not comply with this Agreement.

10.9    Our pricing structure or payment methods may be amended from time to time in our sole discretion.

 

11.       CONFIDENTIALITY

11.1    A party (Recipient) may use Confidential Information of another party (Discloser):

(a)         only to the extent that such use is necessary for compliance with its obligations under this Agreement; or

(b)         if legally compelled to do so by any judicial or administrative body, provided that the Recipient must promptly, to the extent it is legally permitted, inform the Discloser and take all reasonably available legal measures to avoid or limit the extent of such disclosure.

11.2    Each Recipient must in respect of Confidential Information of the Discloser ensure that the Recipient and the Recipient’s Personnel will not disclose or permit the disclosure of the Discloser’s Confidential Information to any person other than to the extent:

(a)         the disclosure is to a member of the Recipient’s Personnel who requires the Recipient’s Confidential Information for the performance of that party’s obligations, or the exercise of that party’s rights, under this Agreement;

(b)         the disclosure is in accordance with the Discloser’s specific and prior written consent; or

(c)         the disclosure is required by law.

11.3    If the Recipient or the Recipient’s Personnel is required to disclose any of the Discloser’s Confidential Information in accordance with clause 11.2(c), the Recipient will:

(a)         immediately, and to the extent possible prior to the disclosure of the Discloser’s Confidential Information, notify the Discloser of the requirement of the applicable law; and

(b)         disclose only so much of the Confidential Information as the Recipient is required by law to disclose.

11.4    The Recipient will take all reasonable steps to ensure that the Recipient and each member of the Recipient’s Personnel will keep the Discloser’s Confidential Information secure including but not limited to by using the security measures and degree of care no less than those the Recipient applies to its own confidential or proprietary information.

11.5    This clause survives the termination of this Agreement.

 

12.       INTELLECTUAL PROPERTY RIGHTS

12.1    A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Commencement Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.

12.2    The Customer grants to SaaS Provider a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for SaaS Provider to provide the Services to the Customer.

12.3    Any Intellectual Property Rights created as a result of Development Services (Foreground Material) will vest in SaaS Provider on creation and Customer must promptly do any acts reasonably requested by SaaS Provider for the Intellectual Property Rights in the Foreground Material to vest in the SaaS Provider.

12.4    This clause survives the termination of this Agreement.

 

13.       PRIVACY

13.1    Each Party and its Personnel agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and this Agreement.

13.2    Details on how SaaS Provider complies with the Privacy Act 1988 and how it collects, discloses, holds or uses personal information is available in SaaS Provider’s Privacy Policy as set out on the Site. SaaS Provider reserves the right to amend its Privacy Policy as required from time to time.

13.3    SaaS Provider will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.

13.4    This clause survives the termination of this Agreement.

 

14.       WARRANTIES

14.1    Each Party warrants that:

(a)         it has the right, power, authority and entitlement to execute this Agreement and perform its obligations under this Agreement;

(b)         this Agreement constitutes a legal, valid and binding obligation and is enforceable in accordance with its terms by appropriate legal remedy;

(c)         in entering into and performing its obligations under this Agreement it has not, and will not, be in breach of any relevant law or any obligation owed to another person;

(d)         there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved and that will or may have an adverse effect on its ability to comply with this Agreement; and

(e)         it has all necessary licences, approvals, permits and consents to enter into and perform its obligations under this Agreement.

14.2    SaaS Provider warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.

14.3    SaaS Provider does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.

14.4    The Customer acknowledges and agrees to the fullest extent permitted by law, SaaS Provider excludes all express and implied conditions and warranties in relation to any Services except those conditions or warranties that cannot be excluded by law and SaaS Provider’s liability under any such conditions or warranties is limited to, at SaaS Provider’s option:

(a)         the supplying of the affected Services again; or

(b)         a refund of the Fees paid in respect to the affected Services.

14.5    Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law.

 

15.       LIABILITY AND INDEMNITIES

15.1    Each Party will at all times indemnify the other Party from and against any Claim or Loss arising out of or in any way connected with any proceedings commenced against the other Party where such Claim or Loss which results from:

(a)         any fraudulent or unlawful act or omission of the first party or its Personnel; or

(b)         any breach of confidentiality obligations by the first Party or its Personnel.

15.2    Each Party’s liability and indemnity under this clause shall be reduced proportionally to the extent that the claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment is contributed to by the acts or omissions of the other Party.

15.3    To the extent permitted by law, SaaS Provider’s maximum and aggregate liability for all Losses or Claims in relation to the Services or this Agreement will be limited, in any period of twelve (12) months commencing on the Commencement Date or any anniversary thereof, to the total amount of Fees paid to SaaS Provider in the prior 12 months.

15.4    In no event will a Party be liable to the other for any Consequential Loss or any other consequential, indirect, special, incidental or punitive damages, regardless of the form of action, whether in contract, tort, statute or otherwise, even if advised of the possibility of such damages and even if the damages were foreseeable.

15.5    The SaaS Provider will not be liable to the Customer for any Liability or Claim caused or contributed to by:

(a)         a fault or defect in any item of the Customer Environment; or

(b)         any Force Majeure event.

15.6    The SaaS Provider uses third-party service providers to host the Services. The SaaS Provider will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of Customer’s Systems, caused by any such third-party service provider.

15.7    Nothing in this Agreement operates to limit or exclude liability that cannot be limited or excluded by law, including a Party’s liability for death or personal injury due to such Party’s act or omission resulting from its negligence or a Party’s liability for fraud.

15.8    This clause survives the termination of this Agreement.

 

16.       TERM AND TERMINATION

Term

16.1    This Agreement will continue until cancelled or terminated in accordance with this clause (Term).

16.2    If the Customer wishes to cancel its subscription, it can do so any time via the Site.

16.3    This Agreement will be terminated at the end of the monthly billing cycle.

Termination

16.4    SaaS Provider reserves the right to terminate or suspend access to all or any portion of the Services immediately:

(a)         for breach or suspected breach of this Agreement; or

(b)         if there is a Force Majeure event which has the effect of compromising the SaaS Provider’s ability to provide the Services.

Effect of termination

16.5    The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.

16.6    Upon termination of a Free Trial or termination of this Agreement for any reason, the Customer’s Data will be deleted immediately by SaaS Provider.

16.7    Before termination of a subscription, the Customer is responsible for recovering or downloading the Data from the Site.

16.8    If this Agreement is terminated due to a breach by the Customer, then SaaS Provider will provide a data dump of the Customer’s Data for an agreed upon fee.

 

17.       DISPUTE RESOLUTION

17.1    If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure.

17.2    The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet or speak in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).

17.3    If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society in Queensland to appoint a mediator.  The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

17.4    Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.

 

18.       SUBCONTRACTING

18.1    The Parties agree SaaS Provider may engage subcontractors to perform the Services on its behalf.

 

19.       GST

19.1    Taxable supply

If GST is payable by SaaS Provider on any supply made under this Agreement, the Customer must pay to SaaS Provider an amount equal to the GST payable on the supply.  That amount must be paid at the same time that the consideration for the supply is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement.  On receiving that amount from the Customer, SaaS Provider must provide the Customer with a tax invoice for the supply if the supply of a tax invoice has not already occurred.

19.2    Adjustment events

If an adjustment event arises in respect of any supply made by SaaS Provider under this Agreement, a corresponding adjustment must be made between SaaS Provider and the Customer in respect of any amount paid to SaaS Provider by the Customer under this Agreement and any payments to give effect to the adjustment must be made.

19.3    Payments

If the Customer is required under this Agreement to pay for or reimburse an expense or outgoing of SaaS Provider or is required to make a payment under an indemnity in respect of an expense or outgoing of SaaS Provider, the amount to be paid by the Customer is the sum of:

(a)         the amount of the expense or outgoing less any input tax credit in respect of that expense or outgoing that SaaS Provider is entitled to; and

(b)         if SaaS Provider’s recovery from the Customer is in respect of a taxable supply, an amount equal to the GST payable by SaaS Provider in respect of that recovery.

19.4    GST terminology

The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999.

19.5    This clause survives the termination of this Agreement.

 

20.       NOTICES

20.1    Any notice required or permitted to be given by either Party to the other under this Agreement will be in writing addressed to the Customer at the address in the Customer’s account. SaaS Provider’s address is set out at the end of this Agreement. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

 

21.       FORCE MAJEURE

21.1    If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by reasons of Force Majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.

21.2    This clause survives the termination of this Agreement.

22.       RELATIONSHIP OF PARTIES

22.1    This Agreement is not intended to create a relationship between the Parties of partnership, joint venture, agency or employer-employee.

22.2    Each Party has no authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other Party.

 

23.       ASSIGNMENT

23.1    Subject to clause 19, the Parties must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of the other Party.

23.2    Any purported dealing in breach of this clause is of no effect.

 

24.       WAIVER OR VARIATION OF RIGHTS

24.1    Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.

24.2    A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.

 

25.       POWERS, RIGHTS AND REMEDIES

25.1    Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party.  Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.

 

26.       CONSENTS AND APPROVALS

26.1    Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.

 

27.       FURTHER ASSURANCE

27.1    Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this Agreement.

 

28.       SEVERABILITY

28.1    If any provision (or part of it) of the Agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of this Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this Agreement and the remaining provisions (and remaining part of the provision) of the Agreement are valid and enforceable.

 

29.       CUMULATIVE RIGHTS

29.1    The rights arising out of this Agreement do not exclude any other rights of either Party.

29.2    Each indemnity in this Agreement is a continuing obligation that is separate and independent from the other obligations of the Parties under this Agreement.

29.3    A Party is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Agreement.

30.       ENTIRE AGREEMENT AND UNDERSTANDING

30.1    This Agreement supersedes all prior undertakings, arrangements and agreements and constitutes the entire agreement between the parties in relation to the subject matter of this Agreement and there are no conditions, warranties or other terms affecting the agreement between the parties other than those set out in this Agreement.

 

31.       GOVERNING LAW AND JURISDICTION

31.1    This Agreement is governed by the laws of Queensland and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.

31.2    This clause survives the termination of this Agreement.

For any questions or notice, please contact us at:

Site Diary Pty Ltd ABN 40 612 148 599

PO Box 237

Caloundra

Queensland 4551

info@sitediaryapp.com

Last update: 6 November 2017