Software as a Service Agreement
This Software as a Service Agreement is between the applicable customer (referred to as “you” or “Customer”) and Cloud Conformity Pty Ltd (ABN 13 610 252 198), its successors and assignees (referred to as “we”, “us”, “our” or “SaaS Provider”) and collectively 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.
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 New South Wales;
Change of Control means a change in:
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:
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, its Personnel or Authorised Users to SaaS Provider, any content uploaded by the Customer, its Personnel or Authorised Users to the SaaS Provider’s System, or otherwise accessed by SaaS Provider in providing the Services;
Fee means the appropriate fee corresponding to the particular Services that it 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:
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;
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;
Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party;
Products means hardware or software;
SaaS Licence is defined in clause 3.1;
SaaS Services means the Software as a service described on the Site;
Services means the SaaS Services and Support 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.cloudconformity.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 Hours means 24 hours a day, 7 days a week;
Support Services is set out in the Schedule;
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 17.
In this Agreement, unless expressed to the contrary:
You may opt-out of receiving marketing materials from us by contacting us using the details set out below or by using the opt-out facilities provided in the marketing materials.
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:
2.4 SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
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:
3.3 LICENCE RESTRICTIONS 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:
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.
4.1 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:
4.2 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.
4.3 The Customer acknowledges and agrees that:
4.4 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.
5.1 During the Term, SaaS Provider will provide the Support Services during the Support Hours provided that:
5.2 The Customer can access the Support Services by email or telephone, but are only available for Authorised Users and Support Services do not cover training.
5.3 Fees will not be charged for answering support questions regarding performance or use of the Services, up to a maximum of four (4) hours per month.
6.1 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.
7.1 The Customer will provide all required materials as required by SaaS Provider from time to time for SaaS Provider to perform the Services.
7.2 The Customer must, at the Customer’s own expense:
7.3 The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
7.4 The Customer acknowledges and agrees that:
8.1 The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
9.1 A Customer may be granted a Free Trial of the SaaS Services without entering their credit/debit card details. However, if a Customer does enter their credit/debit card details before or during the Free Trial and they do not cancel before the expiration of the Free Trial, the Customer will automatically continue to have access to the SaaS Services chosen (depending on the Customer’s Free Trial sign-up choice), and the Customer’s credit/debit card will be billed accordingly as soon as the Free Trial is finished. If a Customer cancels a Free Trial before it expires, the Customer’s credit/debit card will not be charged.
9.2 The Customer will pay SaaS Provider the Fees without any set off or delay through SaaS Provider’s third party payment processor or as otherwise set out on the Site.
9.3 All amounts are stated in the currency as set out on the Site and unless otherwise stated, all Fees are exclusive of any value added tax (where applicable).
9.4 Access to the Services will require the Customer to provide information, including name, email and organisation, and to register for an account.
9.5 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.
9.6 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.
10.1 A party (Recipient) may use Confidential Information of another party (Discloser):
10.2 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:
10.3 If the Recipient or the Recipient’s Personnel is required to disclose any of the Discloser’s Confidential Information in accordance with clause 10.2(c), the Recipient will:
10.4 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.
11.1 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.
11.2 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.
12.1 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.
12.3 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.
13.1 Each Party warrants that:
13.2 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.
13.3 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.
13.4 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:
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.
14.1 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:
14.2 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.
14.3 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.
14.4 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.
14.5 The SaaS Provider will not be liable to the Customer for any Liability or Claim caused or contributed to by:
14.6 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.
14.7 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.
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.
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.
15.1 This Agreement will continue until cancelled or terminated in accordance with this clause (Term).
15.2 If the Customer wishes to cancel its subscription, it can do so any time via the Administration section of the Site.
15.3 This Agreement will be terminated at the end of the monthly billing cycle.
15.4 SaaS Provider reserves the right to terminate or suspend access to all or any portion of the Services for violation or suspected violation of this Agreement.
Effect of termination
15.5 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.
15.6 The provisions of clauses 10, 11, 12, 14, 17, 18, 19, 21 and 31 will survive the expiry or termination of this Agreement.
16.1 If a dispute arises out of or in relation to this Agreement, no party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has complied with this clause.
16.2 A Party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other Party specifying the nature of the dispute. On receipt of that notice by the other Party, the Parties’ representatives must endeavour in good faith to resolve the dispute expeditiously and failing agreement within 20 Business Days of the dispute, either Party, by giving notice to the other, may refer the dispute to the Parties’ Chief Executive Officers (or their nominees) who, each party must ensure, must cooperate in good faith to resolve the dispute within 15 Business Days of the dispute being referred to them.
16.3 If the Chief Executive Officers (or their nominees) fail to resolve the dispute within 20 Business Days of the dispute being deferred to them, the Parties must, at the written request of either party and within 10 Business Days of receipt of the request, submit to mediation, expert evaluation or determination or similar techniques agreed to by them.
16.4 If the Parties do not agree within 5 Business Days of receipt of the notice referred to in clause 16.3 as to the dispute resolution technique and procedures to be adopted, the time table for all steps in those procedures, and the selection of compensation of the independent person required for such a technique, then the Parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of New South Wales and the President of the Law Society of New South Wales or the President’s nominee will select the mediator and determine the mediator’s remuneration.
17.1 The Parties agree SaaS Provider may engage subcontractors to perform the Services on its behalf.
18.1 The Customer will not solicit or entice away, any person or organization that was an actual or prospective, client, employee, contractor, representative, agent of, or developer to, SaaS Provider, during the Term of this Agreement.
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 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.
19.4 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.
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.
21.1 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.
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.
23.1 Subject to clause 17, 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.
24.1 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.
25.1 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.
26.1 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.
27.1 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.
28.1 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.
29.1 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.
30.1 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.
31.1 This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.