Software as a Service Terms and Conditions

BACKGROUND

  1. The Operator wishes to appoint the Contractor to provide the Software as a Service “Saas” solution.
  2. The Contractor has agreed to accept the appointment by the Operator on the terms and conditions in this agreement.

OPERATIVE PROVISIONS

  1. Definitions

The following definitions apply to this Agreement:  

 “Agreement” means the Lead Distribution Terms and Conditions and the Commercial Details, including any Special Conditions.

“API” means the application programming interface made available to the Customer by The Provider.

“APP Entity” has the meaning given in the Privacy Act 1988 (Cth).

“Approved External System” means an external system operated by a third party that : (a) is at any particular time authorised by The Provider to perform the activities described in clause 3.2; (b) has been identified by The Provider in a written notice to the Customer or specified in the Commercial Details; and (c) has not been withdrawn by The Provider as an approved external system by written notice to the Customer.

“Approved Integration Systems” means an integration system operated by a third party that : (a) is at any particular time authorised by The Provider to perform the activities described in clause 2.2; and (b) has been identified by The Provider in a written notice to the Customer; and (c) has not been withdrawn by The Provider as an approved external system by written notice to the Customer. 

“Commercial Details” means the details set out on the Order Form which forms part of this Agreement.

 “Provider” or “Company” means the entity Hicaliber Consulting Pty Ltd (ACN: 655 134 731)

“Confidential Information” means confidential information disclosed by The Provider to the Customer (including the Data), including but not limited to any non-public information relating to The Provider’ research, development, proprietary technology, product and marketing plans, finances, customers, technical information, personnel, business opportunities, and pricing, but does not include information that becomes public knowledge except to the extent it was made public in violation of this Agreement. 

 “Data” means (a) any data or information about Leads, in any form; (b) Updates; (c) any data or information otherwise submitted by a customer or prospective customer in connection with a Lead (including without limitation any information relating to the existing vehicle(s) or needs of the customer or prospective customer); and (d) any data or metadata derived from the data set out in (a)-(c) above. 

 “External System” means, the details specified in the Order Form that indicates the Customer operates an external system, the system is Specified on the Order Form under heading “External System”.

“Fees” means the fees set out in the Order Form 

“Intellectual Property Rights” includes any and all industrial and intellectual property rights of any nature both in Australia and throughout the world, and includes any patents, registered designs and domain names, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to circuit layouts, code, or other proprietary right or right to registration of such rights. 

“Licence” means the rights and permissions granted to the Customer for using the SaaS services, including any limitations or restrictions on usage, intellectual property rights, and the scope of the licence. 

“Lead” means an enquiry from a customer or prospective customer of The Provider and/or a customer of the Recipient on an inventory item submitted either directly or indirectly to The Provider, but excludes enquiries of a type that The Provider does not send to the System (for example, leads originating from certain third party sources). 

“Order Form” means any document that specifies the SaaS Services, subscription fees, and other relevant terms and conditions.

“Permitted Purpose” means the purpose specified in clause 2.2 or 3.2, as applicable. 

“Personal Information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable: 

(a) whether the information or opinion is true or not; and 

(b) whether the information or opinion is recorded in a material form or not. 

“Privacy Act” means Privacy Act 1988 (Cth). 

 “SaaS Services” means the software-as-a-service provided by the Provider to the Customer as described in the Statement of Work or Order Form, including any updates or improvements thereto.

“Special Conditions” means the special conditions (if any) listed under the heading “Special Conditions” within the Order form which contains the Commercial Details. 

“Statement of Work” means any document that outlines the specific services, deliverables, and fees associated with the delivery of the SaaS Services.

“Support Services” means the support and maintenance services provided by Provider to Customer as described in the Support Terms.

“System” means the system or product identified in the Order Form.

“Term” means the period starting when the Agreement has been signed by both parties, and ending at the time specified in Order Form. 

  1. SaaS Services
  1. SaaS Services.
    The Provider shall provide the Customer with access to the SaaS Services in accordance with the terms and conditions of this Agreement.
  2. Restrictions and Responsibilities.
    Customer agrees to use the SaaS Services in compliance with all applicable laws and regulations and shall not:
  1. Attempt to reverse engineer, decompile, or disassemble the SaaS Services;
  2. Share or disclose login credentials to unauthorised users;
  3. Use the SaaS Services to engage in any unlawful or harmful activities;
  4. Use the SaaS Services to transmit any harmful code or malware.
  5. Confidentiality and Proprietary Rights
  1. Confidentiality.
    Each Party shall keep all non-public information received from the other Party confidential and shall not disclose it to any third party without the prior written consent of the disclosing Party.
  2. Data Rights.
    Collate and store data for the express purpose of data analysis, without the visibility of the entities that constitute such data. The company will store such data in accordance with ISO27001 standards.  check PII, AML? Cyber.gov.au

The company uses data for the sole purpose of visualisation, analysis and reporting, and will not use data to repackage and redistribute and or sell such data.

  1. Proprietary Rights.
    Customer acknowledges that the SaaS Services and any related materials are the proprietary and confidential information of Provider. Provider retains all rights, title, and interest in the SaaS Services.
  2. Licence.
    The Provider grants the customer a limited, non-exclusive, non-transferable license to use the SaaS services, outlined in the order form, which is subject to the terms of the agreement. 
  3. Payment of Fees
  1. Subscription Fees.
    Customer shall pay Provider the fees specified in the Order Form for the SaaS Services.
  2. Invoicing and Payment.
    The Provider shall invoice Customer in accordance with the payment terms specified in the Order Form. The Customer shall make all payments in accordance with the terms set out on the invoice.
  3. Term and Termination
  4. Term. 

The initial term of this Agreement shall be as specified in the Order Form. After the initial term, this Agreement shall automatically renew for a successive 12-month period unless either Party provides written notice of termination at least 3 months prior to the end of the then-current term.

  1. Termination for Cause
  2. Without prejudice to any other rights, the Provider may suspend or terminate this Agreement immediately if the Customer breaches a term of this Agreement.
  3. Effect of Termination. 

Upon termination of this Agreement, Customer’s access to the SaaS Services shall cease, and Customer shall promptly return or destroy all Provider’s confidential information. The Provider shall issue the Customer with a full and final statement of account as at the termination date. The Customer shall make any final payments in accordance with the terms set out on the final statement of account.

  1. Warranty and Disclaimer
    1. Provider warrants that any SaaS Service provided as part of this Agreement will operate in accordance with the documentation and will be free from material defects.
    2. The Provider does not warrant that the API or Data is error free or will operate without interruption and to the fullest extent permitted by law, all warranties relating to the supply of Data and API under this Agreement are excluded.
  1. Disclaimer
    1. Except as expressly provided in section 5.1, the SaaS Services are provided “as is” and without warranties of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
    2. The Customer releases and indemnifies Provider, its employees and agents against all actions, claims and demands (including all liabilities, costs, damages, expenses, fines and penalties incurred by or awarded against the Provider, including legal costs) arising out of:
      1. (a) a breach of this Agreement by the Customer; or 
      2. (b) any fraudulent, unlawful or negligent act or omission by the Customer; or
      3. (c) the use of the SaaS Services by Customer in accordance with this Agreement.
  1. General Terms
    1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, whether oral or written.
  1. Limitation on Liability
    1. In no event shall either party be liable for any indirect, special, incidental, consequential, or punitive damages, including, without limitation, loss of profits or data, whether or not such party has been advised of the possibility of such damages.
  1. To the extent permitted by law, the Provider is not liable for any loss or damage related to the Customer’s use of or inability to use the Data or API, however caused, and even if the Provider has been advised of the possibility of such damage. 
  2. Without limiting the foregoing, to the extent permitted by law, the Provider aggregate liability under this Agreement shall not exceed an amount equal to Fees paid by the Customer in the past 3 months.