Squiz Roadmap Subscription Agreement

PLEASE READ THIS SOFTWARE SUBSCRIPTION AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE. BY ACCESSING, COPYING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS RELATED ENTITIES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS RELATED ENTITIES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Squiz Pty Limited (Australian Business Number 77 084 670 600) owns the Software and together with its Related Bodies Corporate, own all Intellectual Property in the Software. The Software is provided for use via this Agreement and is not licenced nor sold.

The Contracting Party is one of (i) Squiz Australia Pty Ltd (Australian Business Number 53 131 581 247), (ii) Squiz UK Limited (UK Registered Number 04816468), (iii) Squiz Limited (New Zealand Company Number 1027323), or (iv) any other entity Squiz may determine from time to time (hereafter "Squiz"). The Contracting Party shall be named as such on the Squiz Roadmap Order Form.

1. Definitions & Interpretations

1.1 Definitions

(a) Commencement Date means the date on which You accepted the terms of this Agreement, including by clicking a box indicating your acceptance or by executing a Squiz Roadmap Order Form referencing this Agreement.

(b) Confidential Information means information of a Party that:

(i) is by its nature confidential; or

(ii) is designated by that Party as confidential; or

(iii) the other Party knows or ought to have known is confidential,

including, without limitation, information relating to:

(iv) the source code, design, specification and content of the Software; and

(v) the personnel, policies or business strategies of Squiz; and

(vi) the terms upon which the Software is being licenced under this Agreement.

but does not include

(vii) information already known to the receiving party at the time of disclosure by the other party; or

(viii) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;

(c) Documentation means any technical and user information relating to or provided within the Software provided by Squiz.

(d) Fees means the fees payable by You to Squiz for the use of the Software as granted pursuant to this Agreement.

(e) Intellectual Property includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights, whether created before, on or after the commencement date of this Agreement;

(f) Malicious Code includes viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

(g) Related Bodies Corporate means (i) where the Software is hosted in Australia, the United Kingdom or New Zealand, the same meaning as in corporate law in operation in the respective jurisdiction in which the Software is hosted, or (ii), where the Software is not hosted in Australia, the United Kingdom or New Zealand, the same meaning as in corporate law in operation in Australia.

(h) Scheduled Maintenance means maintenance of the infrastructure, software or other technology used in providing cloud hosting services on which the Services are reliant.

(i) Services means the Squiz Roadmap products and services that are ordered by You pursuant to this Agreement.

(j) Software means the Squiz Roadmap software, including without limitation all files comprising that Software on which it functions as per the Documentation, including changes or updates as may be issued from time to time.

(k) Squiz Roadmap Order Form means the document of that title entered into between You and Squiz from time to time, including amendments thereto. By executing a Squiz Roadmap Order Form the executor agrees to be bound to the terms and conditions of this Agreement.

(l) Subscription Term means the period for which the Services are provided pursuant to this Agreement as denoted in the Squiz Roadmap Order Form.

(m) Third Party means any party other than You or Squiz and includes (i) Related Bodies Corporate, and (ii) parties having a different Australian Business Number, UK Registered Number or New Zealand Company Number to You (if applicable).

(n) User means individuals who are authorised by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Squiz at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents.

(o) User Cap means the maximum number of Users at each pricing band as determined by Squiz and as amended from time to time.

(p) You means one of either (i) the individual, (ii) an entity or (iii) similar, but does not include Related Bodies Corporate, who has purchased the Software from Squiz pursuant to this Agreement.

(q) Your Data means all electronic data submitted by You to the Services.

1.2 Presumptions and interpretation

Unless the context otherwise requires a word which denotes:

(a) the singular denotes the plural and vice versa; and

(b) any gender denotes the other genders; and

(c) a person includes an individual, a body corporate, and a government.

Unless the context otherwise requires a reference to

(d) any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation; and

(e) any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced; and

(f) a group of persons includes any one or more of them; and

(g) a thing or amount is a reference to the whole and each part of it.

2. Services

2.1 Squiz shall make the Services available to You pursuant to this Agreement and the relevant Squiz Roadmap Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Squiz regarding future functionality or features.

2.2 Unless otherwise specified in the applicable Squiz Roadmap Order Form,

(a) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users,

(b) additional User subscriptions may be added during the applicable subscription term:

(i) if the additional User subscriptions do not result in the total number of User subscriptions breaching a User Cap; at the same pricing as that for the existing User subscriptions;

(ii) if the additional User subscriptions result in the total number of User subscriptions breaching a User Cap, the entire User subscription shall be repriced at the higher User Cap rate, commenced for a new 12 month licence term, with any cash paid for part of that 12 month term credited (by way of credit note only) against Fees for the new licence term.

(c) User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

2.3 Squiz shall:

(a) provide basic support for the Services to You at no additional charge.

(b) use it's best endeavours to ensure the Services are available 24 hours a day, 7 days a week, except for:

(i) Scheduled Maintenance (of which Squiz shall provide at least 72 hours written notice to You)

(ii) any unavailability caused by circumstances beyond Squiz's reasonable control, including but not limited to force majeure events, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Squiz's employees), Internet service provider failures or delays, or denial of service attacks, and

(c) in respect of the events in 2.3(b)(i) and 2.3(b)(ii), Squiz shall use its best endeavours to notify You via the contact details provided in the Squiz Roadmap Order Form, as may be amended from time to time on written notice to Squiz.

(d) provide the Services only in accordance with applicable laws and government regulations.

(e) maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Squiz shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services, potentially improving the Services, preventing or addressing service or technical problems, or at Your request in connection with customer support matters.

3. Your Responsibilities

3.1 You shall:

(a) be responsible for Users' compliance with this Agreement,

(b) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data,

(c) use best endeavours to prevent unauthorised access to or use of the Services, and notify Squiz promptly of any such unauthorised access or use, and

(d) use the Services only in accordance with the Documentation and applicable laws and government regulations.

3.2 You shall not:

(a) make the Services available to anyone other than Users,

(b) sell, resell, rent or lease the Services,

(c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,

(d) use the Services to store or transmit Malicious Code,

(e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or

(f) attempt to gain unauthorised access to the Services or their related systems or networks.

4. Duration

4.1 This Agreement and the Subscription granted herein commences on the Commencement Date.

4.2 Subject to the terms of this Agreement, the Subscription shall continue until Termination.

5. Fees

5.1 You agree to pay the Fees within the terms specified on the invoice received from Squiz.

5.2 All taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement will be borne by You.

5.3 In relation to taxable supplies made under this Agreement, Squiz agrees to provide you with a tax invoice in accordance with the tax legislation applicable in the respective jurisdiction.

6. Ownership

6.1 You acknowledge that Squiz retains ownership of the Software and Documentation, and all proprietary rights in the Software and Documentation.

6.2 You agree all Intellectual Property Rights in the Software and Documentation are and shall remain the exclusive property of Squiz and any of its third party suppliers, as applicable.

6.3 Unless expressly permitted in this Agreement, You must not use any of Squiz's or its third party suppliers' intellectual property without Squiz or its third party suppliers' prior written consent.

6.4 Nothing in this Agreement should be construed as transferring any aspects of such rights mentioned in this clause to You or any Third Party. Squiz reserves any and all rights not expressly granted herein.

7. Usage of trade names and/or marks for Squiz's marketing purposes

7.1 For the purposes of Squiz's marketing only, You grant Squiz the right to quote Your name as a user of the Services, together with the right to use any trademarks directly associated with You for that same limited purpose.

7.2 Squiz undertakes to accurately represent Your usage of the Services.

8. Confidentiality

8.1 Each of Squiz and You agree not to disclose the other's Confidential Information.

8.2 A party will not be in breach of clause 8.1 in circumstances where that party is legally compelled to disclose the other party's Confidential Information.

8.3 You will take all reasonable steps to ensure that Your employees and agents, and any subcontractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.

8.4 This clause will survive the termination of this Agreement.

9. Termination

9.1 This Agreement and the subscription granted herein shall terminate upon the happening of any of the following events:

(a) You fail to comply with any of the terms and conditions of this Agreement, including the non-payment of Fees described in Clause 5;

(b) You have received the Software from a party other than Squiz;

(c) Squiz provides You with another subscription, and You and Squiz agree to be bound by its terms as a replacement for this Agreement; or

(d) You become liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily; or

(e) You and Squiz agree, in writing, to terminate this Agreement.

9.2 On termination, You must immediately cease use of the Software and return to Squiz all copies of the Documentation. Alternatively, You must destroy such Documentation and must certify in writing to Squiz that they have been destroyed.

9.3 On termination, any amounts paid by You to Squiz are non-refundable in their entirety.

10. Warranty

10.1 Squiz warrants that as at the Commencement Date it has the rights, power and authority to enter into this Agreement.

10.2 Squiz warrants that the Software will operate substantially in accordance with the Documentation, as such may be amended or varied from time to time.

10.3 Except as expressly warranted above, Squiz does not warrant or make any representations:

(a) that the Software is suitable for Your use, or is fit for any other purpose; or

(b) that operation of the Software will be-uninterrupted or that the Software is error-free; or

(c) regarding the results of any use of the whole or any part of the Software; or

(d) as to the accuracy, reliability or content of any data, information, service or goods obtained through any use of the whole or any part of the Software.

11. Indemnity

11.1 You hereby agree to indemnify, defend and hold Squiz, its directors, officers, employees and affiliates harmless from and against any and all liability and costs, including reasonable legal fees incurred, in connection with this Agreement.

11.2 This clause 11 will survive the termination of this Agreement.

12. Exclusions and Limitation of Liability

12.1 Squiz makes no express or implied warranties under this Agreement, except under clause 10 (Warranty).

12.2 To the extent permitted by law, Squiz excludes:

(a) from this Agreement all conditions, warranties and terms implied by statute, general law, international convention or custom;

(b) all liability to You in contract for consequential or indirect damages arising out of or in connection with this Agreement even if:

  1. Squiz knew they were possible; or
  2. they were otherwise foreseeable

including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party.

(c) all liability to You in contract for direct or consequential or indirect damages arising out of or in connection with the use or inability to use the Software or Documentation including without limitation, damages for loss of business profits or other pecuniary loss and damages suffered as a result of claims by any Third Party; and

(d) all liability to You in negligence or other non-contractual cause of action in respect of which liability can be excluded for acts or omissions of Squiz, its employees, agents and contractors arising out of or in connection with this Agreement.

12.3 Squiz's liability to You for breach of

(a) any express provision of this Agreement, is limited to the amount paid by You in Fees.

(b) any implied condition or warranty where the exclusion of which would contravene any statute or cause this clause 12 to be void, is limited, at the option of Squiz, to the repair of such Software or Documentation.

13. General Terms.

13.1 Governing law

This Agreement shall be governed by, and construed in accordance with the laws of (i) where the Software is installed in Australia, the United Kingdom or New Zealand, the corresponding country in which the Software is installed, or (ii) in all other cases, the laws of New South Wales, Australia. The parties agree to submit to the jurisdiction of the courts and tribunals as determined in this clause 13.1.

13.2 Entire agreement

This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

13.3 No reliance on other matters

Each of the parties acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty or other assurance except those set out in this Agreement.

13.4 New Versions of the Agreement

Notwithstanding clause 13.5 below, Squiz reserves the right to modify this Agreement at any time by providing such revised Agreement to You. Your continued use of the Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.

13.5 Amendment of Agreement

No amendment to or modification of this Agreement shall be binding unless in writing and signed by both parties.

13.6 Assignment

You must not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of Squiz.

13.7 Severability

If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law; that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.

13.8 Waiver

A waiver by either party in respect of a breach of a provision of this Agreement by the other party shall not be deemed to be a waiver in respect of any other breach and the failure of either party to enforce at any time a provision of this Agreement shall in no way be interpreted as a waiver of such provision.

Version: 130809

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