ALL X Momentum Platform Software-as-a-Service Agreement

Introduction

  • This ALL X Momentum Platform Software-as-a-Service Agreement (agreement) is made between ALL X LLC (ALL X, we, our or us) and the person or entity listed in the Access Portal (Customer, you or your).
  • This agreement and our Privacy Policy govern the Customer’s access to, and use of, the ALL X Momentum Platform and the Services made available through the ALL X Momentum Platform on a subscription basis.
  • Upon the Customer accepting the terms and conditions of this agreement, the Customer will use the User Access Portal to create a unique account (Customer Account) for the Customer to use during the Subscription Term.
  • The Customer Account will be operated by a user name (Customer Username) and password (Customer Password) which can be changed at any time by the Customer through the User Access Portal.

User subscriptions

Use of ALL X Momentum Platform by Authorised Users

  • Subject to the terms of this agreement, the Customer and your Authorised Users are granted a non-exclusive, revocable, personal, non-transferable, and non-sublicensable licence to access and use the ALL X Momentum Platform during the Subscription Term solely for its business purposes.
  • The Customer and your Authorised Users will not acquire, or be entitled to, any rights other than those rights expressly set out in this agreement.
  • In relation to the Authorised Users, the Customer undertakes that:
    • the Customer will ensure that each Authorised User complies with the terms and conditions of this agreement; and
    • each Authorised User will keep a secure non-transferable user name (User Name) and password (User Password) for their access to ALL X Momentum Platform and the Services. The Customer will immediately notify ALL X in writing of any unauthorised use of its Customer Account or its Customer Password. The Customer is responsible for all activities that occurs through the use of its Customer Account, Customer Password, User Name or User Passwords and ALL X are not responsible or liable for any Loss due to misused, stolen or hacked Customer Accounts, Customer Passwords, User Name or User Passwords. The Customer can change any Customer Username, Customer Password, User Name, or User Password at any time, through the User Access Portal.

Use of ALL X Momentum Platform by Customer

  • The Customer acknowledges that:
    • it is responsible for maintaining control over, and the confidentiality of, the Customer Username and Customer Password, and all User Names and User Passwords. The Customer must implement security measures to ensure that no unauthorised person may gain access to the ALL X Momentum Platform using the Customer Username, Customer Password, User Names, or User Passwords;
    • it is responsible for all use of the Services by all Authorised Users or any other person, whether or not authorised by the Customer, who accesses the ALL X Momentum Platform and the Services (directly or indirectly) through use of the User Names and User Passwords;
    • it controls each Authorised User’s level of access to ALL X Momentum, and can revoke or change an Authorised User’s access, or level of access, at any time, and for any reason using the User Access Portal; and
    • if there is any dispute between the Customer and an Authorised User regarding access to ALL X Momentum Platform or use of the Services, ALL X will decide what access or level of access the Authorised User shall have to ALL X Momentum, if any.
  • The Customer or any of your Authorised Users will not impersonate another Customer, Authorised User, or provide false identity information to gain access to the ALL X Momentum Platform or the Services.

Customer Obligations

Access to ALL X Momentum Platform

  • When setting up your Customer Account, the Customer must at all times provide us information that is true, accurate and not misleading or deceptive.
  • During the Subscription Term, the Customer must (at the Customer ‘s cost):
    • obtain and maintain all hardware, software and communications equipment necessary to access and use ALL X Momentum Platform and the Services;
    • not permit its Customer Password and/or User Passwords to be used by any person not authorised to operate its Customer Account. In the event that the Customer Password and/or User Passwords has been (or the Customer believes may have been) compromised, the Customer must immediately take steps to disable any such Customer Password and/or User Password;
    • provide us with all necessary cooperation in relation to this agreement and all necessary access to such systems, data and Personnel as may be required by us to provide Customer Data;
    • comply with all Relevant Laws with respect to its obligations under this agreement;
    • comply with all reasonable directions, policies and guidelines of ALL X, as advised from time to time;
    • carry out all of its responsibilities set out in this agreement in a timely and efficient manner; and
    • ensure that the Authorised Users use the ALL X Momentum Platform strictly in accordance with this agreement and the Customer will be responsible for any act or omission of an Authorised User.

Indemnity

The Customer will defend, indemnify and hold ALL X, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of, any:

  • breach or non-performance by the Customer or Authorised Users of any its obligations under this agreement;
  • negligent, wilful or wrongful act or omission, committed by the Customer and/or Authorised Users;
  • loss or damage suffered or incurred by the Customer, any Authorised User or any third party as a result of the Customer’s failure (or any Authorised User’s failure) to upload or submit accurate or reliable information or Customer Data onto the ALL X Momentum;
  • breach by the Customer or any Authorised Users, of ALL X’s or any third party’s Intellectual Property; and
  • actual or alleged breach by the Customer or an Authorised User of any Relevant Law.

Restrictions

Access restrictions

The Customer will not access, store, distribute or transmit:

  • any viruses, worms, trojans or other malicious code; or
  • any material during the Subscription Term that:
    • is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
    • facilitates illegal activity;
    • infringes the Intellectual Property of a third party;
    • may be unlawful, unethical, harmful, threatening, defamatory, obscene, pornographic, sexist, violent, harassing or racially or ethnically offensive or otherwise objectionable; and
    • corrupts, degrades or disrupts the operation of ALL X, or the Services.

User restrictions

The Customer must not do (nor attempt to do) any of the following:

  • copy, modify, duplicate, create derivative works from, mirror, republish, download, display, transmit or distribute all or any portion of ALL X Momentum Platform;
  • violate ALL X’s Intellectual Property;
  • copy, modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of ALL X Momentum Platform in any way or otherwise learn the source code, object code, or algorithms underlying the ALL X Momentum Platform;
  • license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the ALL X Momentum Platform available to any third party, except the Customer may make the ALL X Momentum Platform available to Authorised Users;
  • engage in illegal behaviour, including by engaging in any unauthorized access to the services, systems or networks by probing, scanning or testing the vulnerability of a system or network or to breach security or authentication measures without express authorisation from ALL X;
  • interfere with service to any user, host or network including, by mail bombing, flooding, or overloading a system;
  • use the Customer Account without our authorisation, collect information by deceit, including, by scamming, password robbery, phishing, security hole scanning, and port scanning; and by engaging in any activity or conduct that is in breach of any Relevant Laws; and
  • make or publish any false, disparaging, malicious or defamatory statement or content (whether written or oral, including, without limitation, on social media) about the following (whether during or after the Subscription Term):
    • ALL X or any of our Affiliates (including Personnel of any of the foregoing);
    • the Services; or
    • ALL X Momentum Platform.

No guarantees

  • The Customer acknowledges that we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the ALL X Momentum Platform or the Services (or any goods or services provided in connection with ALL X Momentum Platform).
  • We will not be liable if the ALL X Momentum Platform or the Services are unavailable for any reason, including directly or indirectly as a result of:
    • telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
    • negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
    • maintenance or repairs carried out by us or any third-party service provider in respect of any of the systems used in connection with the provision of the ALL X Momentum Platform or the Services;
    • services provided by third parties (including internet service providers) ceasing or becoming unavailable; and
    • Force Majeure Events.

ALL X obligations

Service obligations and exclusions

  • During the Subscription Term, we undertake to provide the Customer with access to, and use of, the ALL X Momentum Platform and the Services substantially in accordance with this agreement and the Documentation.
  • The undertaking in clause 5.1 shall not apply in the event of:
    • any non-conformance which is caused, or contributed, by use of ALL X Momentum Platform and the Services contrary to our instructions or the terms of this agreement;
    • modification or alteration of the Services and the ALL X Momentum Platform by any party other than ALL X or our duly authorised Personnel;
    • the unsuitability or malfunction of the computer hardware or computer software in conjunction with which the ALL X Momentum Platform and Services are used;
    • Force Majeure Events; and
    • the unsuitability or malfunction of the Services when used in conjunction with any software, platforms, applications and tools supplied by a third party provider.

Remedial action

  • In the event that ALL X fails to provide you with access to, and use of, the ALL X Momentum Platform and the Services in accordance with clause 5.1, we will, at our expense, use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking in clause 5.1. Notwithstanding the foregoing and subject to requirements of any Relevant Laws, we:
    • do not warrant that the Customer’s use of ALL X Momentum Platform and the Services will be uninterrupted, virus-free or error-free, nor that the Services will assist the Customer to achieve your desired result or outcome or a achieve a minimum level of revenue or profit or return on investment or increased market share;
    • are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the ALL X Momentum Platform and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks; and
    • are not responsible for the reliability, accuracy or currency of any information or Customer Data uploaded or submitted to ALL X Momentum Platform by the Customer or anyone else. The Customer or its third party providers are solely responsible for uploading or submitting to the ALL X Momentum Platform the most up-to-date information or Customer Data.

Customer support services

  • ALL X shall provide the Customer with ALL X’s standard Customer support services during Business Hours in accordance with the ALL X’s support services and maintenance policy in effect at the time the Services are provided

Maintenance Releases and New Versions

The Customer acknowledges and agrees that:

  • we may from time to time, at our absolute discretion, change, add or delete the functions, features, performance, or other characteristics of ALL X Momentum Platform or the Services or implement a Maintenance Release or New Version, provided that any such change does not diminish a Customer’s rights granted under this agreement;
  • the Customer may request customisation or changes to ALL X Momentum Platform, or the Services, which we will reasonably consider but is under no obligation to accept or implement. Additional fees may apply for any customisation or changes to ALL X Momentum Platform or the Services requested by a Customer; and
  • except as expressly provided by this agreement, we are under no obligation to provide any customer support services, error correction, Maintenance Release or New Versions of ALL X Momentum Platform.

Maintenance services

  • We will use reasonable endeavours to make the Services and ALL X Momentum Platform available to the Customer and Authorised Users available 24 hours a day, 7 days a week, except for:
    • planned maintenance carried out at times advised in advance by ALL X Momentum Platform;
    • any Force Majeure Event; and
    • unscheduled maintenance which may need to be performed from time to time. We will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of normal business hours.
  • The Customer’s access to, and use of, ALL X Momentum Platform and the Services may be interrupted or unavailable during scheduled or unscheduled maintenance.

No restraints

This agreement will not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

Payment

Payment of Fees

  • Except during the Trial Period, to access and use ALL X Momentum Platform and the Services, the Customer must pay ALL X, the Subscription Fees and other amounts owing under this agreement during the Subscription Term. The Subscription Fees are payable on monthly basis in advance within seven days of the invoice date.
  • ALL X may grant you (though the ALL X Momentum Service Agreement or other agreement between the parties) a licence to use the ALL X Momentum Platform for a Trial Period. During the Trial Period, you will not be required to pay the Subscription Fees to access and use ALL X Momentum Platform and Services, but following the Trial Period, all Subscription Fees will be payable.
  • All Subscription Fees are in the currency shown on the invoice and are exclusive of any Taxes, if applicable, which will be added to and payable in addition to the Subscription Fees. To the fullest extent permitted by any Relevant Laws, the Subscription Fees are non-refundable. ALL X reserves the right, in our absolution discretion, to amend the Subscription Fees to offset exchange rate currency fluctuations between the currency shown on the invoice and any other country’s currency.
  • When setting up the Customer Account, the Customer will be offered payment options to pay the Subscription Fees. We may, at our absolute discretion and without notice, change the payment methods that can be used to access and use ALL X Momentum Platform and the Services, at any time.

Fee increases

We may increase our Subscription Fees for the provision of ALL X Momentum Platform and the Services at any time upon 30 days’ written notice to the Customer. If the Customer does not agree to the Subscription Fee increase, you may terminate the agreement no later than 30 days after you has received notice of the new Subscription Fee. If we do not receive the written notice within 30 days, you will have deemed to have accepted the new Subscription Fee.

Outstanding amounts

  • If the Customer fails to pay our Subscription Fees or any amount owing to us under this agreement by the due date, without limiting any other remedies available to us under this agreement or any Relevant Law, we may, at our absolute discretion, do any or all of the following:
    • immediately suspend your access to all or any part of ALL X Momentum Platform and the Services and disable the Customer Account/User Names Customer Password/User Passwords (without liability to the Customer, your Authorised Users or anyone else) until all overdue amounts (including interest) are paid in full;
    • charge interest on such overdue amounts, from the due date up to the date of actual payment, at an interest rate of 1.25% per month (15% per annum). Such interest will accrue on a daily basis and be compounded quarterly;
    • set-off any and all overdue amounts against any amounts owing to the Customer by us under this agreement; or
    • terminate the agreement in accordance with clause 11.
  • The Customer will pay us, all costs and expenses incurred in recovering any outstanding invoices (including any interest), legal costs and expenses paid by us in relation to enforcement steps or mercantile or collections agents.

Customer Data

License for Customer Data

  • When the Customer establishes the Customer Account and uses the Services, the Customer and your Authorised Users will be required to provide Customer Data to ALL X. The Customer will retain ownership of Customer Data supplied and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
  • Subject to clause 9, the Customer grants ALL X a worldwide, non-exclusive, royalty-free, perpetual, non-transferable licence to access, use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, the Customer Data (and all Intellectual Property contained therein) for the purpose of:
    • enabling ALL X to provide ALL X Momentum Platform and the Services, and otherwise perform our obligations and exercising our rights under this agreement;
    • informing the Customer of other products or services that ALL X may offer from time to time, or in relation to Third Party Products; and
    • identifying usage patterns, trends, and other statistical or behavioural data derived from use of ALL X Momentum Platform and the Services, in aggregated anonymized form, for the purposes of providing, operating, maintaining, or improving the Services or ALL X Momentum Platform (or any goods or services provided connection with ALL X Momentum Platform); and
    • sharing Customer Data with an Affiliate or other third party (with whom we may contract or be affiliated with from time to time) for the purposes of performing or improving the Services and ALL X Momentum Platform.

Back-Up and Loss of Customer Data

  • In the event of any Loss to Customer Data, the Customer’s sole and exclusive remedy shall be for ALL X Momentum Platform to use reasonable endeavours to restore the Customer Data, that is lost or damaged.
  • ALL X will not be responsible for any Loss, destruction, alteration, corruption or disclosure of Customer Data caused by an act or omission of the Customer, any Authorised Users, any third party, or a Force Majeure Event.

Personal Information

The Customer warrants that, in relation to any Personal Information comprising Customer Data:

  • it has been collected in accordance with your own privacy policy and applicable Privacy Laws; and
  • it has obtained all necessary consents and rights, including from Authorised Users and your Customers, to grant us the licence in clause 7.1(b), or to otherwise make available to us, such information as contemplated herein.

Third Party Providers

  • The Customer acknowledges that the Services and ALL X Momentum Platform, may enable or assist the Customer to use or access Third Party Products and the Customer does so solely at its own risk.
  • We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products, or any transactions completed, and any contract entered into by the Customer, with the owner, licensor or operator of such Third Party Products.
  • We recommend the Customer refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products.
  • We do not endorse, sponsor or approve any Third Party Products or services made available via ALL X Momentum Platform. It is the Customer’s sole responsibility to determine that specific products or services, introduced or used by the Customer or Authorised User meets the needs of its business and/or are suitable for the purposes for which they are used.
  • Any rights the Customer may have to access Third Party Products shall be limited to:
    • the extent of our ability to pass on such rights to the Customer; or
    • the relevant third party licensor terms.

Proprietary and Intellectual Property rights

  • The Customer acknowledges and agrees that ALL X and/or our licensors own all Intellectual Property in the Services and ALL X Momentum Platform (including all updates, Modifications, New Versions and anything else arising or generated from the foregoing). Except as expressly stated herein, this agreement does not grant the Customer or any Authorised Users any rights to, or in, the Intellectual Property, or any other rights or licences, in respect of ALL X Momentum Platform, the Services or Documentation, whether existing now or at any time in the future.
  • The Customer agrees not to submit, publish or upload Customer Data, Personal Information or any other information onto the ALL X Momentum Platform unless the Customer has the right or a licence to do so (and the Customer will ensure that your Authorised Users comply with this obligation). For example, the Customer and your Authorised Users must not upload, post or publish logos, trade marks or copyrighted material to ALL X Momentum Platform, unless the Customer or Authorised User has consent of the copyright or trade mark owner. 
  • The Customer hereby grants ALL X permission to use and publish its name, logo and trademark, together with reference(s) to the fact that the Customer is a Customer of ALL X, in any medium whatsoever, including, without limitation, on our website or our marketing collateral.

Liability

Non-excludable Obligations

  • To the extent that the Customer acquires goods or services from us as a consumer within the meaning of the Australian Consumer Law, the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
  • Nothing in this clause 10 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
    • contravene that statute; or
    • cause any term of this agreement to be void,
      (Non-excludable Obligation).
  •  

Exclusion of liability

Except in relation to Non-excludable Obligations:

  • all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this agreement;
  • ALL X’s liability to the Customer, any Authorised User or any third party arising directly or indirectly under or in any way connected with this agreement or the performance or non-performance of this agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
    • we exclude all liability for any Claims or Losses (including Consequential Loss) incurred by, or awarded against, the Customer in relation to the Services and ALL X Momentum Platform under or in any way connected with this agreement;
    • we exclude all liability for any loss or damage to any property, or for any personal injury or death; and
    • our total aggregate liability in respect of the Services and ALL X Momentum Platform under or in any way connected with this agreement is otherwise limited to the Subscription Fees paid by the Customer to ALL X under this agreement in the three months immediately preceding the date on which the Claim giving rise to such liability arose.

No Warranties

Except as expressly and specifically provided in this agreement:

  • the Customer assumes sole responsibility for information or results obtained from, or outcomes arising from, the Customer’s access to, and use of, ALL X Momentum Platform and the Services. We will have no liability to the Customer, any Authorised User or any third party for any:
    • decision, act, or failure to act by Customer based on any results obtained from the Customer’s access to, and use of, ALL X Momentum Platform, the Services, the Additional Services and the Documentation; and
    • damage caused by errors or omissions in any information or instructions provided to ALL X by the Customer in connection with ALL X Momentum Platform, the Services, the Additional Services or any actions taken by us at the Customer’s direction;
  • all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Relevant Laws, are excluded from this agreement; and
  • the ALL X Momentum Platform, the Services, the Additional Services and Documentation are provided to the Customer and Authorised Users on an ‘as is’ basis.

Customer Warranties

The Customer warrants, acknowledges and agrees that:

  • your use of the ALL X Momentum Platform, the Services, the Additional Services and Documentation has not been made on the basis of any representations made by ALL X regarding the current or future features or functionality of ALL X Momentum Platform or Services;
  • you and each of your Authorised Users have the right to post, publish, upload, submit and reproduce the Customer Data (and all Intellectual Property Rights contained within), on or via, the ALL X Momentum Platform;
  • you have the full power and authority to enter into this agreement and perform your obligations contemplated by this agreement, and in doing so, you will not breach any third party rights; and
  • we make no representation, warranty or guarantee that you will make any profit, revenue, a minimum number of sales or increase your market share or customer base by accessing or using the ALL X Momentum Platform.

Term and Termination

Subscription Term

  • This agreement commences on the date the Customer uses the Access Portal to create a Customer Account with ALL X on, or via, the ALL X Momentum Platform (Commencement Date) and continues until terminated in accordance with clause 11.2 (Subscription Term).

Termination

  • Either party may terminate this agreement at any time by giving the other party 30 days’ written notice. If the agreement is terminated by the Customer in accordance with this clause, ALL X shall not provide the Customer with pro rata refund of the Subscription Fees representing the unused portion of the Subscription Term.
  • Either party may immediately terminate this agreement:
    • if the other party commits a breach of any of its material obligations under this agreement, and if the breach is capable of remedy, does not remedy that breach within seven days after receipt of notice of the breach or any further time allowed by the party; or
    • if an Insolvency Event occurs in respect of a party.

Effect of termination

Upon termination of this agreement for any reason:

  • the Customer must within seven days pay any outstanding Subscription Fees and any other amounts that may be due to us under this agreement;
  • we may, without liability to the Customer or any Authorised User, permanently delete the Customer Account (except for the Customer’s and Authorised User’s contact details), and we may destroy or otherwise dispose of any Customer Data in our possession unless ALL X receives, no later than 10 days prior to termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of Customer Data. ALL X shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by ALL X in returning or disposing of Customer Data.
  • the Customer will immediately destroy or return to ALL X (at our option) all Documentation, Confidential Information, Intellectual Property and other property belonging to ALL X in your possession, custody or control and, in the case of destruction, certify to ALL X that you have done so;
  • all licences to use the ALL X Momentum Platform, the Services and rights of access granted under this agreement will immediately terminate.

Survival

Clauses 3.2, 4.3, 6, 7.2, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.

Confidentiality and Privacy

Confidential Information

  • A Receiving Party:
    • may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
    • must keep confidential all Confidential Information of the Disclosing Party except:
      • for disclosures permitted under this clause 12; and
      • to the extent (if any) the Receiving Party is required to disclose any Confidential Information by law or in accordance with the rules of an applicable stock exchange.
  • A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:
    • have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
    • before disclosure, issue:
      • in the case of the Receiving Party’s officers and employees, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
      • in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this agreement, (each a Direction).
  • A Receiving Party must:
    • ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 12 (b)(ii) complies with its Direction; and
    • notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.
  • If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government), the Receiving Party must:
    • before doing so:
      • notify the Disclosing Party; and
      • give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
      • notify the third person that the information is confidential to the Disclosing Party.
  • Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under this clause 12, and agrees that the Disclosing Party may seek such equitable relief (including interim or injunctive relief) as is necessary, to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.

Privacy compliance

  • Each party must comply with all applicable Privacy Laws in relation to any Personal Information that is provided or made available to or by either party under or for the purposes of this agreement, including by providing all information, obtaining all consents and giving all notices (or ensuring that such information, notices and consents have been given or provided) required pursuant to applicable Privacy Laws.
  • You warrant that you, your Authorised Users and any other individuals whose Personal Information is disclosed to ALL X in connection with this agreement, are aware that ALL X may use and disclose their Personal Information in accordance with this agreement and the Privacy Policy, and have consented to such use and disclosure.
  • The Customer must immediately notify ALL X in writing in the event of any withdrawal of any relevant consent by any individual whose Personal Information is contained or used in or processed by ALL X, giving sufficient details of the withdrawal to enable us to comply with our obligations under applicable Privacy Laws.
  • The Customer must keep adequate accounts, documents and records to evidence its compliance with this clause 13.
  • The Customer must immediately notify ALL X in writing if it becomes aware of a complaint or allegation of breach of an applicable Privacy Law by any person, or an investigation or enforcement action by a regulatory authority, in connection with this agreement.

Additional services

  • Subject to compliance by the parties with the process set out in clause 14(b), ALL X will provide the Additional Services to the Customer in accordance with the terms of this agreement.
  • The Customer may, at any time during the Subscription Term, request ALL X to provide Additional Services in relation to ALL X Momentum Platform by giving ALL X a written proposal to that effect (Additional Service Proposal).
  • ALL X will consider any requests for Additional Services within 14 days of such request and will notify the Customer within a reasonable period whether ALL X:
    • agrees to provide the additional services as set out in the Additional Service Proposal;
    • does not agree to provide the Additional Services; or
    • does not agree to provide the Additional Services as set out in the Additional Service Proposal, but offers to provide some of those services and/or similar services,
      and, in the case of clauses 14(c)(i) and (iii), the applicable fees for the Additional Services.
  • The parties agree that they may, acting reasonably, continue to exchange drafts of the Additional Service Proposal until such time as each of them agree on a final version.
  • An Additional Service Proposal will not be binding on either party (and, to avoid doubt, ALL X will be under no obligation to provide the relevant additional Services) unless the Additional Service Proposal has been signed by duly authorised representatives of both parties.

Dispute resolution

  • Any party claiming a dispute exists under the agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
  • The parties must in good faith attempt to resolve any dispute between them.
  • If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
  • Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.

Force Majeure Event

ALL X will have no liability to the Customer, any Authorised User or anyone else if ALL X is prevented from or delayed in performing its obligations under this agreement, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disaster, epidemic, pandemic, mandatory government shut-downs or lock-downs, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of hosting or data centre providers or other suppliers or sub-contractors, or shortage of suppliers, equipment or materials (Force Majeure Event).

Notices

  • By using the ALL X Momentum Platform and the Services the Customer accepts that communication with ALL X will be mainly electronic. ALL X will contact the Customer by email or provide the Customer with information by posting notices on ALL X Momentum Platform.
  • The Customer acknowledges that all notices, certificates, consents, approvals, waivers and other communications in connection with this agreement may be provided electronically and comply with any legal requirements that such documents be in writing.
  • Notice will be deemed received and properly served immediately when posted on ALL X Momentum Platform or 24 hours after an email is sent to the Customer. As proof of service, it is sufficient that the email was sent to the email address specified by the Customer in the User Access Portal.

General

Waiver

A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

Invalid or unenforceable provisions

  • If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
  • If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Entire agreement

This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

Relationship

Nothing in this agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

Assignment

Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, ALL X may assign, sell or transfer its rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of ALL X’s business.

Inconsistencies

To the extent of any inconsistency between the terms and conditions of this agreement and any other agreement between ALL X and the Customer, the terms and conditions of this agreement will prevail. Further, no terms or conditions set out in any customer agreement, invoice or purchase order (or similar), issued by the customer, will override this agreement.

Governing law

The laws of the State of Victoria, Australia govern this agreement. The Customer agrees to submit to the exclusive jurisdiction of the Courts of Victoria, Australia and and agree that any legal action will only be commenced in this forum.

Definitions and Interpretation

Definitions

The definitions in this clause apply in this agreement.

  • User Access Portal means the self-service portal provided to Customers and Authorised Users to access and use the ALL X Momentum Platform.
  • Additional Service Proposal has the same meaning given in clause 14(b).
  • Additional Services means the services outside the then current scope of the services provided by ALL X under this agreement that you request ALL X to provide, and that ALL X agrees to provide, as set out in an Additional Service Proposal agreed by the parties in accordance with clause 14(b). 
  • Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
  • ALL X Momentum Service Agreement means the agreement between ALL X and the Customer for the provision of [branding and pitch deck services.]
  • Authorised Users mean those Personnel of the Customer who are authorised by the Customer (either on a restricted or unrestricted basis) to access and use the ALL X Momentum Platform and the Services. 
  • Business Day means any day which is not a Saturday, Sunday or public holiday in Victoria, Australia. 
  • Business Hours means 8 am to 5 pm local time in Victoria, Australia, each Business Day.
  • ALL X Momentum Platform means the online platform owned and operated by ALL X and made available to Customers and Authorised Users, and which is used by ALL X to provide the Services, including the application and database software for the Services (including content management system), the system and server software used to provide the Services, the computer hardware on which that application, database, system and server software is installed, and all Intellectual Property contained therein, provided or otherwise made available by ALL X as part of the Services.
  • Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise. 
  • Commencement Date has the meaning given by clause 11.1.
  • Confidential Information means, in the case of a Disclosing Party:
    • the following information, regardless of its form and whether the Receiving Party becomes aware of it before, or after the date of this agreement:
      • information that is by its nature confidential.
      • information that is designated by the Disclosing Party as confidential. 
      • information the Receiving Party knows, or ought to know, is confidential.
    • all notes and other records prepared by the Receiving Party based on or incorporating information referred to in clause (i) above.
    • all copies of the information, notes and other records referred to in clauses (i) and (ii) above.
    • the ALL X Momentum Platform (including any data stored in the ALL X Momentum Platform such as Customer Data),
      but in all cases excludes information that:
    • the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party.
    • is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted discloses).
  • Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the agreement: 
    • direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
    • loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, Customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data;
    • costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
    • loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
  • Customer has the meaning given to it by clause 1(a).
  • Customer Account has the same meaning given in clause 1(c). 
  • Customer Data means all information, materials and data (including Personal Information): 
    • uploaded to, or stored on the ALL X Momentum Platform by the Customer, and/or an Authorised User;
    • transmitted by, or through the ALL X Momentum Platform at the instigation of the Customer and/or an Authorised User;
    • supplied by a Customer, an Authorised User and/or third party for uploading to, transmission by, or storage on, the ALL X Momentum Platform; or
    • generated by the ALL X Momentum Platform as a result of the use of the Services by the Customer and/or an Authorised User.
  • Customer Password has the same meaning given in clause 1(c). 
  • Disclosing Party means a party to this agreement who discloses or makes available Confidential Information to the Receiving Party.
  • Documentation means the manuals, user guides and other documents made available to the Customer by ALL X from time to time, which sets out a description of the ALL X Momentum Platform and the Services and any updates, replacements, revisions and additions to such documentation, provided or made available by ALL X from time to time
  • Force Majeure Event has the same meaning given in clause 16. 
  • Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events.
  • Intellectual Property means all Confidential Information, designs, copyright, derivative works, trade marks, trade mark applications, patents, patent applications, semi-conductor or circuit layout rights, operations, software or systems, inventions, discoveries, trade names, service marks, and domain names, trade secrets, know-how, technical information, specification, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
  • Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.
  • Maintenance Release means release of the ALL X Momentum Platform which adds functionality or otherwise amends or upgrades the ALL X Momentum Platform, but which does not constitute a New Version.
  • Modification means any Maintenance Release.
  • New Version means any new version of the ALL X Momentum Platform which from time to time is publicly marketed and offered for purchase by us in the course of our normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
  • Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.
  • Personnel means any agents, advisors, consultants, contractors, employees, directors, officers or sub-contractors of party and the personnel of any such agents, advisors, consultants, contractors or sub-contractors.
  • Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which the Customer carries on its business.
  • Privacy Policy means our privacy policy available at https://appetiser.com.au/privacy-policy/ or such other web address notified by us to the Customer from time to time, which is incorporated into this agreement.
  • Receiving Party means a party to this agreement who obtains Confidential Information of the other party to this agreement.
  • Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy Laws, anywhere in the world. 
  • Services means:
    • the subscription services provided by ALL X to the Customer under this agreement, which subscription relates to the accessing and/or using of the ALL X Momentum Platform for the purpose of automating the production of online retail marketing and advertising campaigns for distribution across various media and social media platforms; 
    • Additional Services (where applicable); and
    • Support Services. 
  • Subscription Fees means the subscription fees payable by the Customer to access and use the ALL X Momentum Platform and the Services as set out in your Momentum Proposal.
  • Subscription Term has the meaning given by clause 11.1.
  • Support Services means the support services related to the use and maintenance of the ALL X Momentum Platform as set out in ALL X’s support services and maintenance policy.
  • Taxes means any local taxes of any kind, including duties, levies, tariffs, charges, contribution, imposts or any similar charges (including without limitation, sales taxes, use taxes and value added taxes), whether or not similar to any in force at the Commencement Date and whether imposed by a local, municipal, governmental, state, federal or other body or authority in any of the countries to which this agreement applies.
  • Trial Period means the period that the Customer is granted a licence by ALL X to access and use the ALL X Momentum Platform and Services, free of charge.
  • Third Party Products means software, products, services or content (including all Intellectual Property contained therein) that: 
    • are provided by third parties;
    • interoperate with the Services or the ALL X Momentum Platform; and/or
    • may be identified as third party products.
  • User Access Portal means the self-service portal provided to Customers and Authorised Users to access and use the ALL X Momentum Platform.
  • User Name has the meaning in clause 2.1(c).
  • User Password has the meaning in clause 2.1(c).
  • Website means the ALL X website located at https://appetiser.com.au/ or any other site notified by ALL X from time to time.

Interpretation

In this agreement:

  • no provision of this agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this agreement or including the provision in this agreement;
  • the singular includes the plural and vice versa;
  • a gender includes all genders;
  • a party means a party to this agreement; 
  • where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  • a person (including a party) includes:
    • an individual, ALL X, other body corporate, association, partnership, firm, joint venture, trust or government agency; and
    • the person’s successors, permitted assigns, substitutes, executors and administrators;
  • the word ‘including’ or similar, is not intended as a term of limitation;
  • all monetary amounts are expressed in Australian Dollars ($AUD) unless expressly stated otherwise; and 
  • parties must perform their obligations on the dates and times fixed by reference to Victoria, Australia.