1. The Serraview Services Agreement

These General Terms and Conditions are part of the Serraview Services Agreement (“Agreement”) which governs Client’s (also referred to herein as “you” or “your”) use of the Serraview Services, and incorporates the following additional terms and conditions:

  1. The Order Form, describing the specific Services Client is purchasing and related Fees;
  2. These General Terms and Conditions containing the general terms and conditions applicable to Client’s use of all Serraview Services;
  3. The specific SaaS Terms and Conditions (“SaaS Terms and Conditions”) containing additional terms applicable to the particular Services Client is purchasing;
  4. Serraview’s Terms of Use; and
  5. Serraview’s Privacy Policy

2. Definitions and Interpretation

2.1 Definitions

The following capitalized terms used in this Agreement have the meanings ascribed to each of them below:

“Acceptance Criteria” means the set of criteria as described in the Order Form indicating that a professional service has been delivered.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorised User” means Client’s employees, independent contractors and agents that have been Authorised by Client to access the Services on Client’s behalf and/or to receive Client Data (i) in writing, (ii) through the Service’s administrative controls, or (iii) by system integration or other data exchange process.

“Benchmark Data” means de-identified (i.e., not containing any Personal Information) efficiency statistics collected for the purpose of publishing industry-based trends and benchmarks.

“Client” means the individual or individual legal entity entering into this Agreement with Serraview for the purpose of using the Services.

“Client Data” means the electronic data or information submitted by Client or Authorised Users to the Service.

“Client Support Contacts” means the Client or Reseller Personnel who are Authorised to contact Serraview for Support or professional services.

“Committed Workpoints” means the minimum number of Workpoints for SaaS Services that Client is committing to purchasing, to receive any volume discounts or otherwise, across the Term at the net Fee listed in the Order Form.

“Confidential Information” means the Client Data and all other information disclosed by one Party to the other Party pursuant to this Agreement, that is marked or noted as confidential or proprietary at the time of its disclosure or that the receiving Party should reasonably understand to be confidential in nature based on the circumstances of its disclosure. This includes, but is not limited to any non-public aspects of the Services, audit and security reports, product development plans, non-public information relating to either Party’s business activities or financial affairs, security procedures, system designs and configurations, or Intellectual Property. Confidential Information does not include information or material which:

  1. Is already in the public domain, or enters the public domain other than due to a breach of this Agreement;
  2. Is independently developed by either Party without reference to the other Party’s Confidential Information;
  3. Is disclosed by either Party to a third party who is not bound by an obligation of confidentiality with respect to such information;
  4. Can be proven to be already known by the receiving Party at the time of disclosure, other than through any disclosure under this Agreement; or
  5. Is obtained from a source other than the disclosing Party, where that source is entitled to disclose it without an obligation of confidentiality.

“Data Reports” means any document containing Client Data produced, created or developed for Client by or on behalf of Serraview under this Agreement.

“Documentation” means Serraview’s electronic and/or hardcopy user guide(s) for the Services, as updated by Serraview from time to time.

“Effective Date” means the date the Client or Reseller, if applicable, signs the Order Form.

“Fees” means the fees(s) payable by Client for use of the Services as set out or provided for in the Order Form, as modified from time to time in accordance with this Agreement.

“Force Majeure” means an event beyond the reasonable control of a Party, such as: significant failure of a part of the power grid; significant failure of the internet; natural disaster; war, riot, insurrection or terrorism; national emergency; epidemic; act or inaction of government or regulatory agency; strikes or industrial action outside that party’s own workforce; or computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.

“Intellectual Property Rights” means all industrial and intellectual property rights of any kind including copyright (including rights in computer software and documentation), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, , know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

“Initial Term” means the initial subscription period for the Services, as defined in section 9.1.

“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective Party.

“Monthly Fee per Workpoint” means the monthly Fee for SaaS Services per Workpoint that will be charged to Client for any Workpoints that are over and above the Committed Workpoints as described in the Order Form. Discounts do not apply to the Monthly Fee per Workpoint.

“Operating Environment” means software systems to be provided and operated by Client, that are required to access the Services, as specified at the following link: https://serraview.com/operating-environment/.

“Order Form” means an ordering document provided to you by Serraview or Reseller, if applicable, describing the Services and/or professional services you are buying from Serraview or Reseller, and related Fees for the receipt and use of such Services under this Agreement.

“Party” means either of Client or Serraview individually, and “Parties” means Client and Serraview collectively.

“Personal Information” means any personally identifiable information about an individual, including (but not limited to) an individual’s name, email address, unique identifier(s), phone number(s), company position, business unit, cost centre, and location.

“Personnel” of a Party means its officers, employees, individual independent contractors, agents, Affiliates.

“Privacy Policy” means the Serraview Privacy Policy available at the following link: https://serraview.com/legal/privacy-policy/, as amended from time to time.

“Production Data” means all Client Data stored by the System on the Production Site.

“Production Site” means the version of the System provided for Client’s production use of the Services.

“Reseller” means any Authorised third-party reseller of the Services identified by Client and approved by Serraview, for purposes of Client’s purchase of Services from such Reseller under this Agreement.

“Service Term” means the entire subscription period applicable to a Service, including the Initial Term and any Renewal Terms.

“Service Establishment Fees” means the Fees for establishing the Services as specified in the Order Form.

“SaaS Services” means the hosted software applications, including the System, Support and ongoing professional support that is provided for your use under this Agreement, as described in the Order Form.

“Service Establishment” means the professional services to establish the System as described in the Order Form.

“Services” means all SaaS Services, Service Establishment services and associated professional services, all of which are described in the Order Form.

“Support” means technical support provided by Serraview or its agents to assist in Client’s utilization of the Services. It also includes the reporting and troubleshooting of System Errors and Faults (as defined in the Services Terms and Conditions).

“System” means the hosted Serraview workplace management system software components that are specified in the Order Form.

“Term” means the term of this Agreement, beginning on the Effective Date and ending on the date that either Party either party terminates the Term, as permitted hereunder.

“Terms of Use” means Serraview’s Terms of Use available at the following link: https://serraview.com/legal/terms-of-use/ as of the date you sign this Agreement.

“Workpoints” means the sum of the workpoints field for all spaces marked ‘allow org unit allocations’ as measured via the System.

3. Serraview’s Obligations

3.1 Provision of Services

Serraview will provide the Services in accordance with the Order Form, and the specifications and warranties specified in this Agreement.

3.2 Security

Serraview shall during the Term:

  1. Maintain a formal security program (“Information Security Program”) materially in accordance with industry standards that is designed to: (i) ensure the security and integrity of Client Data; (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorized access to Client Data. Such measures must at minimum be aligned with the security standards set out in ISO/IEC 27001:2005 – Information technology – Security techniques – Information Security Management Systems – Requirements.
  2. Provide the Client with appropriate information about its Information Security Program upon request.
  3. Not make the Client Data available to the Serraview Personnel without the prior written consent of the Client, except as reasonably required to perform its obligations under this Agreement.

3.3 Data Interference

  1. If Serraview becomes aware of unauthorised access to Client Data, then Serraview shall promptly:
    1. Notify Client of the unauthorised access;
    2. Use best efforts to identify the cause and prevent any further such unauthorised access; and
    3. Certify to Client that Serraview has taken all reasonable action to prevent any reoccurrence of the unauthorised access.
  2. If any Production Data is lost, destroyed or altered while stored in Serraview’s possession or under its control, without being due to the fault of Client, Serraview shall take all practicable and reasonable measures at its own cost to promptly restore the Production Data without additional charge.
  3. Client’s rights under this clause are in addition to all other rights Client may have under this Agreement or at Law.
  4. If either Party believes that there has been a disclosure of Client Data to anyone other than an Authorised User or Serraview, such Party shall promptly notify the other Party.  Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification that should be sent to individuals impacted or potentially impacted.  Each Party shall bear the reasonable costs of such remediation or mitigation to the extent the breach or security incident was caused by it.

3.4 Privacy Obligations

Serraview must maintain a Privacy Policy compliant with all obligations imposed on Serraview by the Australian Privacy Act 1988 (Cth) and the Australian Privacy Principles.

3.5 Insurance

Serraview shall throughout the Term maintain the following insurance policies with a reputable insurance company:

  1. Public liability, covering Serraview with a limit of not less than AUD$10 million per occurrence and in the aggregate;
  2. Professional Indemnity, covering Serraview with a limit of not less than AUD$5 million per loss and in the aggregate; and
  3. Appropriate workers’ compensation for an insured amount of not less than those required by the applicable location in which the Services are performed.

4. Client’s Obligations

4.1 General Obligations

During the Term, Client shall:

  1. Use the Services only for its internal business purposes and not for the benefit of any third parties, in accordance with the Documentation, this Agreement and all applicable Laws;
  2. Provide Serraview with all information, assistance and co-operation reasonably requested by Serraview in order to enable Serraview to meet its obligations under this Agreement including, without limitation, all information, assistance or cooperation required in relation to the resolution of System outages, security problems, any suspected breach of this Agreement, or any dispute between Serraview and any other third party in relation to the Services;
  3. Seek its own legal advice regarding use of the Services, in particular relating to the processing and storage of Personal Information included within the Client Data;
  4. Where required by Law, notify Client Personnel that Serraview will be collecting, using and storing their Personal Information in compliance with Serraview’s Privacy Policy;
  5. Where required by Law, shall seek consent of Client Personnel for such collection, use and storage; and
  6. Client shall designate not more than the maximum number of named contacts specified in the Order Form to request and receive Support from Serraview. Each named Support Contact must be trained on the Services for which they initiate Support requests.

4.2 Terms of Use

  1. Client shall comply, and ensure that that each Authorised User complies, with the Terms of Use. Client acknowledges that it has read and understood the Terms of Use prior to entering into this Agreement.
  2. Client acknowledges that Serraview may at any time amend the Terms of Use to add or modify restrictions on its use of the Services, provided that the changes are reasonable and consistent with industry norms. If we make a change to the Terms of Use, we will publish a revised version of the policy at https://serraview.com/legal/terms-of-use/. The revised Terms of Use will become effective on the first to occur of:
    1. The first day of a renewal of the Term;
    2. Client’s delivery and Serraview’s acceptance of new or additional order for Services;
    3. 30 days following Serraview’s written notice to you of the revision to the Terms of Use, provided you give no written objection during that time; or
    4. As otherwise agreed by the Parties in writing.

4.3 Fees and Payments

  1. All Orders. Unless otherwise agreed in an Order Form: Fees for SaaS Services will be invoiced based on the number of Committed Workpoints; Serraview will invoice annually in advance for all SaaS Services from the Effective Date and each anniversary during the Service Term thereafter; Serraview will invoice monthly for any overages for SaaS Services at the Monthly Fee per Workpoint; Fees for Professional Services will be based on a fixed-fee or time-and-materials basis as described in the Order Form; Serraview will invoice 50% of any fixed-fee Service Establishment Fees at the Establishment Date and the remainder will be invoiced as Acceptance Criteria is met; Serraview will invoice any time-and-materials Professional Services Fees monthly in-arears; Invoices that are not disputed in good faith within 180 days of invoice date are conclusively deemed accurate; All Fees are quoted and payable in Australian dollars; Except as expressly specified in this Agreement all payment obligations under any and all Order Forms are non-cancellable and all payments made are non-refundable.
  2. Resellers. In circumstances where Client is submitting an order for Services to a Reseller, the commercial terms specified in that Order Form (e.g., amount and timing of payment of Fees, term of Services, taxes, etc.) shall be determined solely as between Client and such Reseller and Client shall pay any Fees or other amounts owing under that Order Form directly to Reseller and not to Serraview.
  3. Terms Applicable to Direct Orders. The following provisions apply only to orders for Services submitted directly to Serraview (“Direct Orders”):
    1. Invoices & Payment. Client shall provide Serraview with complete and accurate billing and contact information including a valid email address for receipt of invoices.
    2. Overdue Payments. All Fees (except Fees subject to good faith dispute) shall be due and payable within thirty (30) days of invoice date. Any payment not received from Client by the due date may accrue (except with respect to an invoiced amount then under reasonable and good faith dispute), at Serraview’s discretion, late charges at the rate of 3% above the Commonwealth Bank Corporate Overdraft Reference Rate of the outstanding balance per month from the date such payment was due until the date paid, and Client shall be liable for Serraview’s cost of collection;
    3. Reimbursable Expenses. Where reimbursable expenses are specified in an Order Form, Client will reimburse Serraview’s reasonable travel and living expenses associated with the provision of the applicable Services. All reimbursable expenses must be pre-approved by Client before a booking is made. Serraview will supply receipts and other reasonable evidence to the Client of all reimbursable expenses, together with an invoice related to such expenses;
    4. Non-Payment and Suspension of Service. If Client’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Serraview reserves the right to suspend the Services upon thirty (30) days written notice, without liability to Client, until such amounts are paid in full; and
    5. Taxes. Except as otherwise stated in an Order Form, the Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including goods-and-services, value-added, excise, use or withholding taxes (collectively, “Taxes”). If Serraview has a legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Serraview with a valid tax exemption certificate Authorised by the appropriate taxing authority.

4.4 Security Procedures

Client shall be solely responsible for the following:

  1. Implementing and maintaining reasonable security precautions in connection with its use of the Services;
  2. Maintaining permissions applicable to Authorised Users’ access to the System, via the System configuration menu, and promptly suspending such access with respect to terminated Personnel;
  3. Ensuring that each Authorised User is trained in appropriate security procedures to operate the System; and
  4. Ensuring that Authorised Users are not sharing their login information with other Client Personnel.

5. Acknowledgements, Indemnity and Liability

5.1 Mutual Acknowledgements

Both Parties acknowledge:

  1. Client and Serraview are independent contractors and neither Party has the authority to bind the other. This Agreement is not intended and will not be taken to constitute any partnership, agency employment or joint venture relationship between the Parties;
  2. The Client Data is Client’s property, except in where Personal Information is the property of the person named;
  3. Other than Service Upgrades as defined in the SaaS Terms and Conditions, this Agreement may only be varied if the terms of the agreed variation are recorded in writing and signed by a person with appropriate authority from both Parties;
  4. A waiver by either Party in respect of a breach of a provision of this Agreement by the other party will not be taken to be a waiver in respect of any other breach. The failure to enforce a provision of this Agreement will not be interpreted as a waiver of that provision;
  5. Except as otherwise provided in this Agreement, all rights and remedies available to a Party under this Agreement are cumulative and not exclusive of any other rights or remedies at Law;
  6. Each party must, and must ensure that any other relevant persons will, do anything (including executing any agreements and documents) necessary to give full effect to the transactions contemplated by this Agreement; and
  7. Each Party and its Personnel shall comply with all applicable Laws in the performance of this Agreement.

5.2 Client Acknowledgements

Client acknowledges:

  1. Client is solely responsible for managing Client Personnel’s access rights and use of the Services, and for the acts or omissions of such Personnel.
  2. Client is solely responsible for the supply and cost of the user facilities and Operating Environment necessary to access the Services, including end user equipment, internet access and telecommunications services;
  3. During the Term, Serraview may publicly disclose that it is providing Services to you and may use your name and logo to identify you as a Serraview customer in promotional materials, including press releases, but will not use your name or logo in a manner that suggests an endorsement or affiliation;
  4. The Internet is not necessarily a secure and confidential method of communications, as such all Client Data should be transported to the System over a secure, encrypted connection and any Client Data transmitted by the Client over the internet shall be done so at their own risk;
  5. Serraview will provide Support only to your designated Customer Support Contacts. No Support will be provided directly to your end users unless specifically agreed in writing;
  6. Serraview may suspend Services without liability if:
    1. Serraview reasonably believes that the Services are being used in material breach of this Agreement;
    2. Client fails to reasonably cooperate with Serraview’s investigation of any suspected violation of this Agreement;
    3. Serraview is required by Law, or regulatory or government body to suspend the Services; or
    4. There is another event for which Serraview reasonably believes that the suspension of Services is necessary to protect the security of Serraview network.
    Serraview will give the Client advance notice of a suspension under this clause of at least twenty-four hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Serraview or its other customers from imminent or significant operational, legal or security risk.
  7. Certain aspects and features of the Services may be designed to help Client comply with various regulatory requirements that may be applicable to it. However, Client is solely responsible for identifying and complying with such regulatory requirements as applied to it and for selecting and using the Services in a manner that complies with such regulations;
  8. Serraview may collect, retain and use Benchmark Data for the purpose of publishing industry-based trends and benchmarks and any other purpose permitted under applicable Law.

5.3 Serraview Indemnity

  1. Serraview shall defend and indemnify Client, including its Affiliates and their employees, officers, agents and contractors (collectively, the “Indemnified Parties”) from and against all damages, liability, costs and expenses (including legal expenses) sustained or incurred by the Indemnified Parties, whether directly or indirectly, arising out of or in connection with any claim made or brought by a third party, to the extent it is based on an allegation that Client’s use of the Services in accordance with this Agreement infringes any third party’s Intellectual Property Rights (each an “Infringement Claim”). The indemnification obligation specified in this Section is Client’s and the Indemnified Parties’ sole and exclusive remedy with respect to any Infringement Claim.
  2. Serraview’s indemnification obligation under this Agreement is conditioned on the following:
    1. Serraview shall have sole control of the defence and settlement of the Infringement Claim (provided that Serraview may not settle any Infringement Claim unless it unconditionally releases Client of all liability).
    2. Client must take all reasonable steps to mitigate any losses, damages, liability, costs and expenses it sustains or incurs arising out of or in connection with the Infringement Claim.
    3. Client will notify Serraview as soon as it becomes aware of any actual or threatened Infringement Claim.
    4. Client will, if requested, provide Serraview with reasonable assistance in investigating, defending and resolving the Infringement Claim with the Client’s reasonable costs of such assistance being met by Serraview.
  3. Without limiting Serraview’s indemnification obligation with respect to Infringement Claims, if an Infringement Claim has been alleged or asserted against Client or it is determined by Serraview in its sole reasonable judgment that an Infringement Claim is likely to be alleged or asserted against Client, Serraview may at its sole expense:
    1. Modify the Services in order to avoid continuing infringement;
    2. Procure for Client the right to continue the use or possession of the infringing Services or component of the Services; or
    3. If neither of the options specified above are, in Serraview’s reasonable judgment, available on a commercially reasonable basis, terminate Client’s rights under this Agreement with respect to the infringing Services or component of the Services and refund to Client any prepaid Fees attributable to those Services for the remainder of the Term.

5.4 Client Indemnity

Client shall defend and indemnify Serraview from and against all damages, liability, costs and expenses (including legal expenses) sustained or incurred to the extent they are attributable to any claims made or brought by a third party:

  1. Alleging that the Client Data infringes the rights of, or has caused harm to, a third party or violates any Law; or
  2. That are based on a breach of this Agreement by Client or its Personnel. With respect to the foregoing indemnification obligation Serraview shall: (i) promptly give written notice of the claim to Client; (ii) give Client sole control of the defence and settlement of the claim (provided that Client may not settle any Claim unless it unconditionally releases Serraview of all liability); and (iii) provide to Client, at Client’s cost, all reasonable assistance.

5.5 Liability

  1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR CLIENT’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CLIENT IN CONSIDERATION FOR SERRAVIEW’S DELIVERY OF THE SERVICES DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICES FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT TO BE PAID FOR THE FIRST TWELVE MONTH PERIOD).
  2. Exclusion of Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FOR CERTAINTY, CLIENT MAY NOT ASSERT THAT ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT ARE EXCLUDED AS SERRAVIEW’S LOST PROFITS.

6 Warranties

Serraview warrants that during the Term: (a) The functional components of the Services shall perform materially in accordance with the applicable documentation provided by Serraview or available on Serraview’s web site; and (b) The functionality of the Services will not be materially decreased. As Client’s exclusive remedy and Serraview’s sole liability for breach of the warranty set forth in this Section (a): (i) Serraview shall correct the non-conforming components of the Services at no additional charge to Client, or (ii) in the event Serraview is unable to correct such deficiencies after good-faith efforts, Serraview shall refund Client the Fees paid that are attributable to the defective Services from the date Serraview received such notice. To receive warranty remedies, Client must promptly report deficiencies in writing to Serraview, but no later than thirty (30) days of the first date the deficiency is first identified by Client.

EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERRAVIEW MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES. SERRAVIEW DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CLIENT IN CONNECTION WITH THE PROVISION OF THE SERVICES.

7 Confidential Information

  1. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
  2. A Party may only use, reproduce, disclose or provide access to the Confidential Information of the other party for the purposes of performing its obligations or exercising its rights under this Agreement, or as may be required by Law.
  3. Each Party agrees not to disclose the other’s Confidential Information to any third party except as follows:
    1. To each of its respective Personnel, Affiliates, service providers, agents and representatives (to the extent that they require access to the Confidential Information for the purpose of performing its obligations under this Agreement), provided that such Personnel, Affiliates, service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement;
    2. A disclosure by one Party of the other Party’s Confidential Information to the extent required by Law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure;
    3. Upon the termination or expiration of this Agreement and at the other Party’s request, each Party will return or destroy any and all of the other party’s Confidential Information (excluding the Client Data, as described below) that the receiving party is capable of returning or destroying in the ordinary course of its business, unless legally prohibited from doing so. Each Party shall protect any Confidential Information of the other Party in accordance with this Agreement for so long as it retains such Confidential Information. Serraview shall have no obligation to return or maintain the Client Data following termination of the Term, unless otherwise agreed by the Parties, and may delete or destroy the Client Data in the ordinary course of its business.

8 Intellectual Property Rights

8.1 No Transfer of Intellectual Property Rights

Except for the license to use the Services and Documentation set forth in Section 8.3 below, this Agreement does not transfer any right, title or interest in or to Serraview’s Intellectual Property Rights to Client. Serraview retains all right, title and interest, including all Intellectual Property Rights, in the System and Services and any derivative works, modifications, enhancements, upgrades or updates thereto.

8.2 Data Reports

Client owns the Data Reports. To the extent that any Intellectual Property Rights of Serraview are incorporated into the Data Reports, Serraview grants to Client a non-transferable, non-exclusive and royalty-free license to use such Intellectual Property as part of the Data Reports for Client’s own internal business and operational purposes, including for the purposes of adapting, modifying, maintaining, updating, enhancing or further developing the Data Reports.

8.3 License to Use the Services.

Serraview grants to Client a non-exclusive, non-transferable (without the right to sub-license) license to use the Services and Documentation for the Term, in accordance with this Agreement. Client shall not (i) modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party, other than to Authorised Users as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Serraview in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.

8.4 Use of Suggestions

You grant to Serraview a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you or by your Personnel, relating to the Services.

8.5 Use of Client Data

You grant to Serraview a non-exclusive, non-transferable (without the right to sub-license), royalty-free, fully paid up license to use such of the Client Data which You supply to Serraview, for the Term of this Agreement, solely to the extent necessary and for the express purpose of the provision and use of the Services in accordance with this Agreement.

9 Term and Termination

9.1 Term of the Agreement

This Agreement shall have an initial term commencing upon the Effective Date and extending for three (3) years thereafter (“Initial Term”), unless otherwise specified in the Order Form. At the end of any Service Term, the Agreement will automatically renew for successive renewal terms equal to the Initial Term (each a “Renewal Term”) at Serraview’s then current rates, unless either Party provides the other Party with written notice of non-renewal, delivered within the thirty (30) day period immediately preceding the date of expiration of such Service Term.

9.2 Termination for Breach by Either Party

Either Party may terminate this Agreement,: (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon any termination by Client pursuant to this Section, Serraview shall refund Client any prepaid fees for the affected Service that were to be provided after the effective date of termination.

9.3 Effect of Termination

Upon the termination of this Agreement:

  1. Provided the termination was not attributable to Client’s material breach, Serraview will make the Client Data available to Client for retrieval at no additional charge. Client may also optionally engage Serraview to further assist with migration of the Client Data, at Serraview’s then current rates for such services; and
  2. Upon any termination of this Agreement, howsoever occurring, Client shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Services and Serraview Confidential Information. Termination for any reason shall not relieve Client of the obligation to pay any Fees accrued or due and payable to Serraview prior to the effective date of termination and termination for any reason other than for uncured material breach by Serraview shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms. Upon termination for cause by Serraview, all future amounts due under all Order Forms shall be accelerated and become due and payable immediately.
  3. The covenants, conditions and provisions of this Agreement which are intended or capable of having effect after the expiration or termination of this Agreement (including, without limitation, provisions relating to Confidential Information, Client’s obligation to pay of Fees, warranties, indemnities, limitation of liability and ownership of Intellectual Property Rights) shall remain in full force and effect following any expiration or termination of this Agreement

10 Force Majeure Event

To the extent that a Party’s delay or inability to perform under this Agreement (other than any delay in the payment of money due and payable hereunder) is due to the existence and its notification of Force Majeure, the affected obligations of that Party under this Agreement will be suspended until the passing of that Force Majeure event. A party must take all reasonable steps to minimize any disruption to and resume the performance of its affected obligations.

11 Notices

All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Any notices under this Agreement shall be sent to the address specified in the Order Form. Any notices to Serraview shall be addressed to the attention of its Legal Department. Notices to Client shall be addressed to Client’s signatory of this Agreement, with a copy addressed to Client’s Legal Department. Each Party may modify its designated recipient for notices hereunder by providing a notice in accordance with this Section.

12 Assignment

Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms) without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due Fees are paid in full. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

13 Waiver and Severability

No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of that provision in any other jurisdiction. If any provision or part thereof of this Agreement is made ineffective in any jurisdiction in accordance with this Section, then that provision shall be replaced, to the extent legally possible with a legal, enforceable, and valid provision that is similar in tenor to the ineffective provision.

14 Entire Agreement and Amendments

This Agreement contains the entire agreement between the Parties with respect to its subject matter and supersedes all previous oral or written agreements, arrangements, understandings, conduct, warranties, representations or other communications by the Parties with respect to its subject matter. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

15 Electronic Signatures

This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures.

16 Governing Law

The Agreement is governed by and takes effect and will be construed in accordance with the laws of Victoria and the Commonwealth of Australia and the parties irrevocably and unconditionally submit to the nonexclusive jurisdiction of the courts of Victoria, the Commonwealth of Australia and courts entitled to hear appeals therefrom.