SaaS Terms of Use
NB. These are the SaaS terms, relevant for those wishing to create an account and utilise the services provided by Fungies Inc.
Effective starting Jan 11, 2023
Please read this Agreement carefully and immediately cease using the Services if you do not agree to it.
1. Acceptance
These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions, form the agreement between Fungies Inc. , 2100 Geng Road, Suite 210, Palo Alto, California, 94303, EIN: 92-0927516 (referred to as “SaaS Provider”, “we” or “us”) and the user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party, (Agreement).
The SaaS Provider owns, or holds the relevant rights to, the Fungies Software and will license the use of the Software as a service to the Customer.
The Customer wishes to license the SaaS Services available at https://app.fungies.io/ (Site) from the SaaS Provider.
This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the SaaS Provider provides the Customer with an account (Customer’s account) to access and use the Services (Effective Date).
By accessing and/or using the Services you:
warrant to us that you have reviewed this Agreement, including our Website Terms of Use (available on the Site) and our Privacy Policy (available on the Site), with your parent or legal guardian (if you are under 18 years of age), and you understand it;
warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and
agree to use the Services in accordance with this Agreement.
You must not create a Customer account unless you are at least 18 years of age. If you are a parent or legal guardian permitting a person who is at least 13 years of age but under 18 years of age (a Minor) create a Customer account and/or use the Site, you agree to: (i) supervise the Minor’s use of the Site and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site and their Customer account; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.
By using our Services and subscribing on our Site, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.
2. Services
On or from the Effective Date and during the Term, the SaaS Provider agrees to provide the Services in accordance with the terms of this Agreement.
The Customer agrees the SaaS Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by the SaaS Provider to the Customer including any Customer configuration documentation.
The SaaS Provider reserves the right to change or remove features of the SaaS Services from time to time. Where there is any material alteration to the SaaS Services in accordance with this clause, the SaaS Provider will provide the Customer with 20 Business Days’ notice and the Customer agrees that any material alteration is at the SaaS Provider’s discretion.
The Parties agree that the SaaS Provider:
will supply the Services on a non-exclusive basis;
does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
The SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
3. SaaS Service Licence
In consideration for payment of the Fees, the SaaS Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with the Service Provider’s intended purpose for the SaaS Services (SaaS Licence).
The Customer agrees that the SaaS Licence:
commences from the Effective Date or the day the Customer is granted access to the SaaS Services by the SaaS Provider, whichever occurs first;
permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and
permits the Customer to provide access and use of the SaaS Services to Authorised Users by embedding the SaaS Services into Customer’s services to its customers, as applicable.
4. Licence Restrictions
The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the SaaS Provider’s Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
resell, assign, transfer, distribute or provide others with access to the SaaS Services;
“frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software (except as expressly permitted by the Copyright Act 1968 (Cth)); or
alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.
The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Australia or the jurisdiction in which the Customer or its Personnel are located.
5. Data
The Customer grants to the SaaS Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:
to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
to do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provide such Data is re-identified;
for diagnostic purposes;
to test, enhance and otherwise modify the Services whether requested by the Customer or not;
to develop other Services; and
as reasonably required for the performance of the SaaS Provider’s obligations under this Agreement.
The Customer represents and warrants that:
any and all Data supplied by the Customer or otherwise accessed by the SaaS Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable;
its Data does not breach any relevant laws, regulations or codes;
its Data does not infringe the Intellectual Property Rights of any third party;
it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the SaaS Services; and
to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.
The Customer acknowledges and agrees that:
any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. The SaaS Provider is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
The SaaS Provider may relocate the Data to another jurisdiction. In each case, the SaaS Provider will give the Customer 15 Business Days’ notice and use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;
The SaaS Provider is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and
The SaaS Provider is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
The Customer agrees to indemnify and hold the SaaS Provider harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of the SaaS Provider or its Personnel.
6. Support and Service Levels
During the Term, the SaaS Provider will provide the Support Services in accordance with the Service Levels during the Support Hours provided that:
the Customer provides the SaaS Provider with notice for applicable Services in accordance with any applicable system and processes as set out on the Site, as applicable; and
where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the SaaS Provider all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).
7. SaaS Provider Additional Responsibilities and Obligations
The SaaS Provider must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorised access, use, copying or disclosure.
8. Customer Responsibilities and Obligations
The Customer will provide all required materials as required by the SaaS Provider from time to time for the SaaS Provider to perform the Services.
The Customer must, at the Customer’s own expense:
provide all reasonable assistance and cooperation to the SaaS Provider in order to enable the SaaS Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the SaaS Provider to provide the Services;
use reasonable endeavours to ensure the integrity of the Data;
permit the SaaS Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and
make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
in any way that damages, interferes with or interrupts the supply of the Services.
The Customer acknowledges and agrees that:
it is responsible for all users using the Services including its Personnel and any Authorised Users;
its use of the Services will be at its own risk;
it is responsible for maintaining the security of its account and password. The SaaS Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
the SaaS Provider may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
the Customer is responsible for all content posted and activity that occurs under their account. This includes content posted by others who have logins or accounts associated with the Customer’s account;
if they operate a shared Customer account, make (or allow any third party to make) material available by means of the Services (including shareable links and SCORM objects), the Customer is entirely responsible for the content of, and any harm resulting from, that content. That is the case regardless of what form the content takes, which includes, but is not limited to text, photo, video, audio, or code;
the technical processing and transmission of the Service, including the Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
if the SaaS Provider wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to the SaaS Provider or make any such changes to the Customer Environment, that the SaaS Provider reasonably requires; and
the SaaS Provider may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
9. Prohibited Use
The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out on the SaaS Provider’s website or as provided to the Customer from time to time.
The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
use the SaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
use the SaaS Services in relation to crimes such as theft and fraud;
use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
make any unauthorised copy of any copyrighted material owned or licenced by the SaaS Provider;
introduce malicious programs into the SaaS Provider System (e.g. viruses, worms, trojan horses, e-mail bombs);
reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;
use the SaaS Services to make fraudulent offers of goods or services;
use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the SaaS Services;
send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages; use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”) is strictly prohibited; and
use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.
10. Communication
Each Party will appoint and maintain at all times a relationship manager who will be responsible for the management of this Agreement.
11. Payment
The Customer must pay the SaaS Provider:
the Fee; and
any other amount payable to the Provider under this Agreement,
without set off or delay using the Payment Method in accordance with the Payment Terms. All Fees are in USD$, and are payable in advance.
If the Customer requires the use of a purchase order, the Customer is responsible for providing the applicable purchase order at the time of purchase. The Customer acknowledges and agrees to the extent of any inconsistency between this Agreement and any terms and conditions attached to the Customer’s purchase order, the terms of this Agreement will prevail. The Parties acknowledge and agree that any pre-printed standard terms and conditions attached to or on the back of any purchase order will not apply to this Agreement.
If there is a Variation, the SaaS Provider will include the Variation Fees due and payable for the Variation performed in invoice(s) subsequent to the performance of any Variation.
If any payment has not been made in accordance with the Payment Terms, the SaaS Provider may (at its absolute discretion):
immediately cease providing the Services, and recover as a debt due and immediately payable from the Customer its Additional Costs of doing so;
charge interest at a rate equal to the Federal Reserve Bank of America cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
report the Customer to any independent credit data agencies.
12. Confidentiality
Subject to clause 12.2, each Party must (and must ensure that its Personnel do):
keep confidential; and
not use or permit any unauthorised use of,
all Confidential Information.
Clause 12.1 does not apply where:
the information is in, or comes into, the public domain (other than by a breach of this clause 12 by the relevant Party);
the relevant Party has the prior written consent of the Party that disclosed the Confidential Information;
the disclosure is required by law;
the disclosure is required in order to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the recipient complies with the terms of this clause 12; and
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Party disclosing the Confidential Information ensures the adviser complies with the terms of this clause 12.
Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 12. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 12.
This clause 12 will survive the termination or expiry of this Agreement.
13. Intellectual Property Rights
A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
The Customer grants to the SaaS Provider a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for the SaaS Provider to provide the Services to the Customer.
We do not screen content uploaded onto the SaaS Service, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Service that we deem inappropriate, illegal, offensive, threatening, libellous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.
We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of us or third parties.
This clause 13 will survive the termination or expiry of this Agreement.
14. Privacy
Each Party and its Personnel agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and this Agreement.
Details on how the SaaS Provider complies with the Privacy Act 1988 (Cth) and how it collects, discloses, holds or uses personal information is available in the SaaS Provider’s Privacy Policy as set out on the SaaS Provider’s website at https://elev.io/legal/privacy-policy or as provided to the Customer from time to time. The SaaS Provider reserves the right to amend its Privacy Policy as required from time to time.
This Agreement supplements and incorporates the Privacy Policy and, to the extent the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) applies to this Agreement, the GDPR Data Processing Schedule where we are a processor under the GDPR, as set out at https://elev.io/legal/gdpr.
The SaaS Provider will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.
The Customer warrants that it has obtained each of its Personnel’s informed consent for the Service Provider, its related bodies corporate, and their respective Personnel to use, store, manipulate or otherwise deal with the personal information contained in the Data.
The Customer must ensure that any collection, processing, use, disclosure and transfer by the Customer and its Personnel of personal information in connection with the performance of its obligations under this Agreement complies with all applicable privacy law and the privacy policy of the Customer.
The Customer must take all necessary steps to ensure that the personal information held or accessed by it in connection with this Agreement is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure (Data Breach). The Customer will promptly give written notice to the Service Provider of any actual or suspected Data Breach and will provide information, assistance and other cooperation as requested by the Service Provider in respect of the Data Breach.
The Customer must co-operate with any reasonable requests or directions of the Service Provider relating to the security, use, disclosure, and transfer of personal information, the Service Provider’s legal obligations relating to the personal information, complaints relating to the personal information and the rights of individuals to access and correct the personal information or opt out of receiving any communications from or on behalf of the Customer.
The Service Provider will retain Customer’s information for as long as Customer account is active or as needed to provide Customer services. Service Provider will retain and use information as necessary to comply with legal obligations, resolve disputes, and enforce agreements.
This clause 14 will survive the termination or expiry of this Agreement.
15. Representations and Warranties
General Each Party represents and warrants to each other Party:
it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
no Insolvency Event has occurred in respect of it;
this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it.
SaaS Provider
The SaaS Provider warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.
The SaaS Provider does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.
Repitition Each Party makes the representations and warranties in clause 15.1 on each day on which it is a Party.
16. Indemnity and liability
The SaaS Provider is liable for the acts and omissions of all its Personnel as if they were done by the SaaS Provider.
Despite anything to the contrary (but subject to clause 16.3), to the maximum extent permitted by the law:
the SaaS Provider’s maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed, in any Contract Year, the total amount of Fees paid to SaaS Provider in the prior Contract Year; and
the SaaS Provider will not be liable to the Customer for: (i) any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data ); (ii) lack of access to or use of or inability to access or use the Service; (iii) any conduct or content of any third party on the Services; (iv) any content obtained from the Services; nor (v) unauthorised access, use or alteration of your transmissions or content,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Clause 16.2 will not apply to the SaaS Provider’s Liability to the Customer under this Agreement for any liability which cannot be excluded or limited by applicable law, including:
fraud or criminal conduct; or
death or personal injury.
Despite anything to the contrary, to the maximum extent permitted by the law, the SaaS Provider will have no Liability, and the Customer releases and discharges the SaaS Provider from all Liability, arising from or in connection with any:
failure or delay in providing the Services;
breach of this Agreement; or
misuse of the Services,
where caused or contributed to by any:
Force Majeure Event;
a fault or defect in any item of the Customer Environment; or
act or omission of the Customer or its Personnel.
The SaaS Provider uses third-party Service Providers to host the Services. The SaaS Provider will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of the Customer’s Systems, caused by any such third-party service provider.
The Customer agrees that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.
The Customer agrees to indemnify, and hold harmless, the Service Provider against all Liabilities and Claims arising out of or in connection with:
any and all unauthorised use of the SaaS Service;
Authorised Users access or use of the Services;
injury to or death of any person caused by any act or omission by or on behalf of the Customer or its Personnel; and
damage to any real or tangible property caused by any act or omission by or on behalf of the Customer or its personnel.
This Clause 16 will survive the termination or expiry of this Agreement.
17. Term
Commencement
The Term of this Agreement takes effect on and from the Effective Date and continues for the Initial Term, if specified, and any Renewal Term, or otherwise indefinitely, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
Applicable to Initial Terms and any Renewal Term: At least 30 Business Days prior to the expiry of the current Contract Year, either Party may notify the other that it does not wish for the Term to be renewed and in such event, this Agreement will expire at the end of the then current Contract Year. If a Party has not given notice pursuant to this clause, this Agreement is automatically renewed for another 12-month period (Renewal Term).
Applicable to Initial Terms and any Renewal Term: If a Party wishes to vary any of the Terms of this Agreement, it must give at least 30 Business Days’ notice prior to the expiry of the current Contract Year to enable the Parties to meet to discuss any proposed variation.
18. Termination
Where there is no Initial Term or Renewal Term, Customer may terminate this Agreement by giving SaaS Provider at least 30 days prior written notice, such termination will take effect with at the expiry of the then current billing cycle.
Where there is an Initial Term or Renewal Term, Customer may only terminate this Agreement in accordance with clause 17.1(b)
The Customer may terminate this Agreement by giving at least 30 Business Days’ notice to the SaaS Provider, or if the SaaS Provider is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the SaaS Provider has failed to remedy the breach within 30 Business Days’ of receipt of written notice from the Customer describing the breach and calling for it to be remedied.
The SaaS Provider may terminate this Agreement by giving at least 30 Business Days’ notice to the Customer if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within 30 Business Days of receipt of written notice from the SaaS Provider describing the breach and calling for it to be remedied.
The SaaS Provider may terminate this Agreement immediately by giving written notice to the Customer where:
the Customer undergoes a Change of Control to a competitor of the SaaS Provider as determined by the SaaS Provider;
an Insolvency Event occurs in relation to the Customer;
the Customer commits a breach of this Agreement not capable of remedy; or
breaches clause 4 (Licence Restrictions) or clause 9 (Prohibited Use).
The SaaS Provider may suspend overdue accounts without notice to the Customer. A $300 reinstatement charge applies to reactivate any suspended account once full payment has been received.
19. Events Following Termination
Upon termination of this Agreement, the SaaS Provider will:
immediately stop performing the Services;
immediately stop placing orders for supplies or services required in connection with the performance of the Services; and
promptly return to the Customer or destroy all property, including Confidential Information, Intellectual Property and Data in its possession that belongs to the Customer.
Upon termination of this Agreement, the Customer will immediately:
cease and desist from any use of the Services;
return to the SaaS Provider all property, including Confidential Information and Intellectual Property, in its possession that belongs to the SaaS Provider;
pay the Fees for all Services completed; and
Where Customer has terminated due to a major failure of the Services as such term is defined under the Australian Consumer Law, the Service Provider will refund the Customer that portion of the Service Fee directly relating to the period of the major failure.
The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.
This clause 19 will survive the termination or expiry of this Agreement.
20. Dispute Resolution
Disputes
A Party must not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first complying with this clause 20 unless:
that Party is seeking urgent interlocutory relief; or
the Dispute relates to compliance with this clause.
Notwithstanding the existence of a Dispute, the Parties must continue to perform their obligations under this Agreement.
Negotiation
In the event of a Dispute, the Party claiming there is a Dispute must give written notice to the other Party or Parties to the Dispute setting out the details of the Dispute and proposing a resolution (Dispute Notice).
Within 10 Business Days after receipt of the Dispute Notice, each relevant Party must (if applicable by its senior executives or senior managers who have authority to reach a resolution on its behalf) meet at least once to attempt to resolve the Dispute in good faith. All aspects of every such conference, except for the occurrence of the conference, will be privileged.
Mediation
If the relevant Parties are unable to resolve the Dispute with 15 Business Days after receipt of the Dispute Notice, any Party involved in the Dispute may (by written notice to the other Parties) submit the Dispute to mediation administered by the Australian Commercial Disputes Centre (ACDC), with such mediation to be conducted:
in good faith;
in Victoria; and
in accordance with the ACDC Mediation Guidelines.
The costs of mediation are to be split between the relevant Parties, provided that each Party will bear its own costs in relation to the mediation.
If the Dispute has not been settled within 20 Business Days after the appointment of a mediator, or such other period as agreed in writing between the Parties, the Dispute may be referred by any Party involved in the Dispute (by written notice to the other Parties) to litigation.
This clause 20 will survive the termination or expiry of this Agreement.
21. Subcontracting
The Parties agree the SaaS Provider may engage subcontractors to perform the Services on its behalf
22. Non-Solicitation
The Customer will not solicit or entice away, any person or organisation that was an actual or prospective, client, employee, contractor, representative, agent of, or developer to, the SaaS Provider, during the Term of this Agreement.
This clause 22 will survive the termination or expiry of this Agreement.
23. GST
Taxable supply If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement, and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
Adjustment events If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
Payments If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
GST terminology The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
This clause 23 will survive the termination or expiry of this Agreement.
24. General
Notices
A notice or other communication given under this Agreement must be:
in writing, in English and signed by the sender; and
addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.
The Customer’s notice details are set out in the Customer’s account. The SaaS Provider’s notice details are set out on the Site. A Party may change its notice details by written notice to the other Parties, which, for the Customer, is by updating their Account, and for SaaS Provider, is by updating the Site.
A notice or communication is taken as having been given:
when left at a Party’s current address for notices;
if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or
if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
This subclause will survive the termination or expiry of this Agreement.
Force Majeure If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by reasons of Force Majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.
Waiver Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
Powers, rights, and remedies Except as provided in this Agreement or permitted by law, the powers, rights, and remedies of a Party under this Agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.
Consents or approvals Except as provided in this Agreement, a Party may give, attach conditions to or withhold any consent or approval under this Agreement at its sole and absolute discretion. A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
Assignment No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Parties. Any purported dealing in breach of this clause 24.6 is of no force or effect.
Further assurance Each Party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it. This subclause will survive the termination or expiry of this Agreement.
Costs and expenses Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation, and execution of this Agreement and any document relating to it.
Relationship of Parties
This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties.
Nothing in this Agreement gives a Party authority to bind any other Party in any way.
Links to Third Parties The Services may contain links to third-party web sites or services that are not owned or controlled by the SaaS Provider. The SaaS Provider has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. The Customer further acknowledges and agree that the SaaS Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
Independent legal advice Each Party acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
Severance
If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
Entire agreement The Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
Amendment This Agreement may only be amended by written document executed by all Parties.
Cumulative Rights
The rights arising out of this Agreement do not exclude any other rights of either Party.
Each indemnity in this Agreement is a continuing obligation that is separate and independent from the other obligations of the Parties under this Agreement.
A Party is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Agreement.
Governing law and jurisdiction This Agreement is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
25. Definitions and Interpretation
Definitions
In this Agreement, unless the context otherwise requires:
Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by the SaaS Provider.
Authorised User means the user(s) permitted to use the SaaS Services and the content, including Data, generated by, or the output of, the SaaS Services as a part of the Customer’s services to its customers.
Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Business Hours means 9am to 5pm on a Business Day.
Change in Control occurs in respect of a Party if, after the Effective Date, a person acquires (directly or indirectly):
shares in that Party conferring alone or in aggregate 50% or more of the voting or economic interests in that Party on a fully diluted basis;
the power to control the appointment or dismissal of a majority of the directors of that Party; or
the capacity to control the financial and operating policies or management of that Party.
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.
Confidential Information includes information or documentation which:
is disclosed to the recipient in connection with this Agreement (whether before or after the Effective Date);
is prepared or produced under or in connection with this Agreement (whether before or after the Effective Date); or
relates to:
the business, assets or affairs of a Party or any of its affiliates;
the business, assets or affairs of a company in a group of companies to which the Customer belongs, or any client of that company in the group; or
the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed to the recipient or received, acquired, overheard or learnt by the recipient in any way whatsoever.
Contract Year means a 12 month period commencing on: (i) the Effective Date; and (ii) each subsequent anniversary of the Effective Date, of this Agreement during the Term.
Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems.
Data means all of the information, documents and other data provided by the Customer or their Personnel to the SaaS Provider, any content uploaded by the Customer or Personnel to the SaaS Provider’s System, or otherwise accessed by the SaaS Provider in providing the Services.
Dispute has the meaning given in clause 20.1(a).
Dispute Notice has the meaning given in clause 20.2(a).
Fee means the fee set out on the Site for the Customer account.
Force Majeure means any event or circumstances beyond the reasonable control of a Party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it:
would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and
results in a Party being unable to perform an obligation under this Agreement on time.
Initial Term means the initial term set out in the Customer account.
Insolvency Event means the occurrence of any one or more of the following events in relation to a Party:
the Party is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;
an application or order is made for the winding up, bankruptcy or dissolution of the Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of the Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
a controller is appointed in respect of any of the Party’s property;
the Party is deregistered under the Corporations Act 2001 (Cth) or other legislation or notice of its proposed deregistration is given to it;
a distress, attachment or execution is levied or becomes enforceable against the Party or any of its property;
the Party enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of the Party or its property;
a petition for the making of a sequestration order against the estate of the Party is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or the Party presents a petition against itself; or
anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Party.
Intellectual Property Rights means all present and future rights to:
copyright;
registered or unregistered designs, patents, trade marks;
trade, business, company or domain names;
know-how, inventions, processes, trade secrets;
circuit layouts, databases or source codes; and
any similar rights in any part of the world,
including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing. Liability means any expense, charge, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent. Page View means as any time Customer’s account loads a page (website) that has SaaS Services embedded in it. Party means a party to this Agreement from time to time, and Parties means all of them.
Payment Method is by credit card, Wire Transfers, or Bank Deposit.
Payment Terms means 30 days from the date of the invoice.
Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party.
Products means hardware or software.
Related Body Corporate has the meaning given in section 9 of the Corporations Act 2001 (Cth).
SaaS Licence is defined in clause 3.1.
SaaS Services means the Fungies Software as a service described on the Site.
Service Level means any service levels set out on the Site.
Services means the SaaS Services and Support Services, to be provided or licensed by the SaaS Provider to the Customer on the terms and conditions set out in this Agreement.
Software means the software used to provide the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties.
Support Hours means:
the hours the SaaS Provider will provide the Support Services as set out on the Site; or
if such hours are not specified, AEST Business Hours.
Support Services are set out on the Site.
System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network.
Term means the term of this Agreement as set out in clause 17.
Variation means a change to the SaaS Licence after the date of this Agreement.
Variation Fee means any variation to the Fee as a consequence of the Variation.
Interpretation
In this Agreement, unless the context otherwise requires:
the singular includes the plural and vice versa;
headings are for convenience only and do not affect interpretation;
a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
includes and similar words mean includes without limitation;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
a reference to time is to local time in Victoria, Australia; and
a reference to $ or dollars refers to American Dollars from time to time.
For any questions, please contact us at:
Fungies Inc. , 2100 Geng Road, Suite 210, Palo Alto, California, 94303, EIN: 92-0927516
Email: contact@fungies.io
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