Checkbox Customer Agreement

CHECKBOX CUSTOMER AGREEMENT

Effective starting from: 5 November 2020 (view archived versions)

This Customer Agreement (“Agreement“) is entered into between you and Checkbox Technology Pty Ltd (ABN 35 612 175 685) (“Checkbox”, “we”, “us” or “our”).

By clicking on the “I agree” (or similar button) that is presented to you on your Order, or by otherwise using or accessing the Software, you indicate your assent to be bound by this Agreement.

If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of that company, government or other entity and to bind it to this Agreement.

If you do not agree to this Agreement, do not use or access the Software.

 

1.     SCOPE OF THE AGREEMENT

This Agreement governs your initial purchase of the Software and Support, as well as any future purchases made by you that reference this Agreement. This Agreement includes any Orders, Statements of Work, the Checkbox Policies, the End User Licence Agreement and any other referenced policies and terms.

 

2.     LICENCE RIGHTS

2.1.        Your Licence Rights. Subject to your compliance with the terms and conditions of this Agreement, Checkbox grants you a non-exclusive, non-transferable and non-sublicensable (except as otherwise permitted under this Agreement) licence to access and use the Software, during the Licence Term, for your use and enjoyment of the Software, as contemplated by this Agreement.

2.2.        Restrictions. Unless expressly authorised in this Agreement, you will not:

(a)        reproduce, modify, adapt or create derivative works of the Software;

(b)        rent, lease, distribute, sell, or transfer the Software to a third party;

(c)        interfere with or otherwise circumvent mechanisms in the Software intended to limit your use;

(d)        reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);

(e)        remove or obscure any proprietary or other notices contained in any Software;

(f)        use the Software for competitive analysis or to build competitive products; or

(g)        encourage or assist any third party to do any of the foregoing.

 

3.     AUTHORISED USERS

3.1.        Authorised Users. Authorised Users may access and use the Software. Some Software may allow you to designate different types of Authorised Users.  The pricing and functionality of the Software may vary according to the type of Authorised User.

3.2.        Responsibility for Authorised Users. You are responsible for all fees incurred by Authorised Users and for all applicable fees incurred from adding additional Authorised Users as detailed in the relevant Order. You are responsible for compliance with this Agreement by all Authorised Users and ensure that all use of Software by you and your Authorised Users are within the Scope of Use.

3.3.        External Users. In addition to the Scope of Use under this Agreement, and subject to payment of additional fees, you may grant your own customers (“External Users”) limited rights to use the Software solely so that your own customers’ end users may view and interact with the Software in accordance with this Agreement. You may not permit External Users to use the Software for purposes unrelated to supporting your own offerings or grant External Users administrator, configuration or similar use of the Software. You are responsible under Section 3.2 (Responsibility for Authorised Users) for all External Users as “Authorised Users” and are solely responsible for your own products and service offerings to External Users. Notwithstanding anything to the contrary in this Agreement, to the maximum extent permitted by law, Checkbox provides no direct or indirect warranty or indemnity and has no liability (including any Liability) or obligations of any kind to External Users.

3.4.        Public Users. Users may access and use the Software through publicly accessible links (“Public Links”) to the Software (“Public Users”). The functionality of the Software may vary according to the access permitted under the Public Links. A Public User’s access and use of the Software is subject to its compliance with, and acceptance of, the End User Licence Agreement.

 

4.     YOUR DATA

4.1.        Use of your Data. You retain all right, title and interest in and to your Data in the form submitted to the Software. You grant Checkbox a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to your Data:

(a)        to fulfil the Order including to enable the Authorised Users to access and use the Software;

(b)        to supply the Professional Services;

(c)        for diagnostic and support purposes;

(d)        to conduct analytics about how users interact with the Software and content that Checkbox provides, the characteristics of our user base and other data derived from the data we collect from or about our users;

(e)        to test, enhance and otherwise modify the Software; and

(f)        as reasonably required for the performance of Checkbox’s obligations under this Agreement.

4.2.        Data Compliance Obligations. You represent and warrant that any and all Data supplied by you or otherwise accessed by Checkbox through the provision of the Software is your sole and exclusive property or that you have secured any and all authorisations and rights to allow us to use the Data . Notwithstanding any other provision to the contrary, to the maximum extent permitted by law, Checkbox assumes no responsibility or liability (including any Liability) for your Data, and you are solely responsible, and you waive and release us from any Liability, for your Data and the consequences of submitting and using it with the Software.

4.3.        Indemnity regarding Data. Notwithstanding any other provision to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify and hold Checkbox harmless for, the corruption or loss of any Data inputted by you in the Software or controlled or stored by you, to extent the corruption or loss of the Data is not caused by grossly negligent acts or omissions of Checkbox. Notwithstanding any other provision to the contrary, to the maximum extent permitted by law you will defend, indemnify and hold us (and our Personnel and Affiliates) harmless from and against any Liability arising from, or in connection with:

(a)        any claims or disputes brought by Authorised Users arising out of their use of the Software; or

(b)        your breach (or alleged breach) of Section 4.2 (Data Compliance Obligations).

This indemnification obligation is subject to you receiving (a) the exclusive right to control and direct the investigation, defence or settlement of such Liabilities, and (b) all reasonable necessary cooperation by us, at your expense.

 

5.     SUPPORT, PROFESSIONAL SERVICES AND SERVICE LEVELS

5.1.        Support. Checkbox will provide the support services for the Software described in the Checkbox Support Policy at the support and service levels and during the support term specified in your Order, during the period for which you have paid the applicable fee. The Checkbox Support Policy may be modified by Checkbox from time to time to reflect process improvements or changing practices. Where we provide any support services to you, you agree to assist us in investigating and ascertaining the cause of any applicable issues and provide us with access to all necessary information relevant.

5.2.       Professional Services. You may request Checkbox to provide you with Professional Services, by providing written or verbal notice to Checkbox. Following notification from you, at Checkbox’s discretion, Checkbox may issue you with a Statement of Work for the Professional Services. If you accept the Statement of Work, by signing the Statement of Work, confirming by email that you accept the Statement of Work or instructing Checkbox (whether orally or in writing) to proceed with the Professional Services, Checkbox agrees to provide the Professional Services to you, and Checkbox’s provision of the Professional Services will be subject to this Agreement. You agree that:

(a)        we will use all reasonable commercial endeavours to reach any timeframes set out in the Statement of Work, but such timeframes are an estimate only and create no obligation on us to provide the Professional Services by that time; and

(b)        we will notify you if we reasonably consider that any instruction or direction from you constitutes a variation to the Professional Services (“Variation”) and we will not be obliged to comply with such instruction or variation, unless we have accepted the Variation and you have accepted any costs related to the Variation.

5.3.        App Acceptance Testing. Any Professional Services where Checkbox has provided services to advise on, create, or amend an App will be subject to the acceptance testing procedure provided in a Statement of Work. Once an App has been accepted in accordance with the procedure provided in the Statement of Work, notwithstanding any other provision to the contrary, to the maximum extent permitted by law, Checkbox will have no liability for any Liability, and you waive and release Checkbox from any Liability for any defects or errors in an App or the content the App generates.

5.4.        Updates. Checkbox may, from time to time, automatically Update the Software. You consent to such automatic upgrading.

 

6.     YOUR RESPONSIBILITIES AND OBLIGATIONS

6.1.        Cooperation with Checkbox. You will provide all required materials as required by Checkbox from time to time for Checkbox to fulfil the Order or Statement of Work. You must, at your own expense:

(a)        provide all reasonable assistance and cooperation to Checkbox in order to enable Checkbox to fulfil the Order or Statement of Work in an efficient and timely manner including but not limited to obtaining from Authorised Users any consent necessary to provide Authorised Users access to the Software;

(b)        use reasonable endeavours to ensure the integrity of the Data;

(c)        permit Checkbox and its Personnel to have reasonable access to Your Environment for the purposes of fulfilling the Order or Statement of Work;

(d)        ensure that only Authorised Users will access and use the Software and such use and access will be in accordance with the terms and conditions of this Agreement;

(e)        make any changes to Your Environment that may be required to support the delivery and operation of any Software;

(f)        notify Checkbox of incidents, vulnerabilities, and security concerns, including information security breaches, as they are identified within a reasonable and practical timeframe, and provide access to any relevant information to aid in the resolution of the issue or concern;

(g)        notify Checkbox of changes made to technical or administrative contact information;

(h)        maintain your own system(s) of record;

(i)        ensure the supervision, management, and control of the use of the Software by your Personnel;

(j)        maintain your own disaster discovery and business continuity plans that address the inability to access or utilise the Software; and

(k)        ensure that security configurations meet your security requirements, including any APIs or integrations.

6.2.        Responsibility of Users. You are responsible for your (and your Personnel and Authorised Users) use of the Software and must ensure that no person uses the Software:

(a)        to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;

(b)        to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or

(c)        in any way that damages, interferes with or interrupts the supply of the Software, including any security breaches.

6.3.        Third Party Inputs. You agree that the provision of the Software may be contingent on, or impacted by, Third Party Inputs that may interface or interoperate with the Software, including third party software or services. To the extent that you use such Third Party Inputs, you are responsible for, the purchase of, the requirements and the licensing obligations, related to the applicable Third Party Input, including third party software and services.

 

7.     NO-CHARGE SOFTWARE

7.1.        No-Charge Software. We may offer certain Software to you at no charge, including free accounts, trial accounts, and access to Beta Versions as defined below (collectively, “No-Charge Software”). Your use of No-Charge Software is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Software for competitive analysis or similar purposes.

7.2.        Beta Versions. You understand that any pre-release and beta Software we make available, including beta features within generally available Software (collectively, “Beta Versions”), are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. We make no promises that any Beta Versions will ever be made generally available. All information regarding the characteristics, features or performance of Beta Versions constitutes Checkbox’s Confidential Information.

7.3.        Limited Rights on No-Charge Software. We may terminate your right to use No-Charge Software at any time and for any reason in our sole discretion, without liability to you. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities (including Liabilities), and you waive and release Checkbox from any Liability, with respect to, No-Charge Software, including any Support, warranty, and indemnity obligations.

 

8.     AUDIT AND MONITORING

Checkbox, its Personnel, or any authorised agent of Checkbox has the right to audit and inspect, and appoint one or more auditors to audit and inspect, your use of the Software to verify your compliance with this Agreement. We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and our reasonable costs of conducting the audit, and you will pay the invoice promptly after receipt.

9.     PAYMENT AND TAXES

9.1.        Payment. You will pay all fees in accordance with each Order or Statement of Work, by the due dates and in the currency specified in the Order or Statement of Work. If you require the use of a purchase order, you are responsible for providing the applicable purchase order at the time of purchase. The Parties acknowledge and agree that any terms and conditions attached to, or applying to, your purchase order, will not apply to, and is expressly excluded from, this Agreement.

9.2.        Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of the Software or Professional Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Checkbox, you must pay to Checkbox the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Checkbox any such exemption information, and Checkbox will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

9.3.        Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and Checkbox will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If Checkbox qualifies for a tax exemption, or a reduced treaty withholding rate, Checkbox will provide you with reasonable documentary proof. You will provide Checkbox reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

9.4.        Increased Scope of Use. During your Licence Term, you may increase your Scope of Use (e.g., adding Authorised Users, number of submissions made through Apps, or instances) by placing a new Order or, if made available by Checkbox, directly through the Software. Any increases to your Scope of Use will be subject to additional fees, as set forth in the applicable Order.

9.5.        Non-Payment. If the fees are unpaid for 10 Business Days after the expiry of the applicable due date, Checkbox has the right to:

(a)        suspend access to the Software without liability to you;

(b)        cease providing the Professional Services (if applicable);

(c)        engage debt collection services for the collection of any unpaid and undisputed debt; and

(d)        commence legal proceedings for any outstanding amounts owed to Checkbox.

(e)        You acknowledge and agree that you are liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expenses and that Checkbox may place a default against you with a credit reporting agency. Notwithstanding any other provision to the contrary, to the maximum extent permitted by law, you agree to indemnify Checkbox, and hold Checkbox harmless in respect of, the full amount of Checkbox’s legal and debt recovery costs. If you rectify non-payment of the fees after access to the Software has been suspended, then Checkbox will recommence the provision of the Software as soon as reasonably practicable.

 

10.   CONFIDENTIALITY

10.1.        Confidential Information. Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how and business, technical and financial information disclosed to a Party (“Receiving Party”) by the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party, whether or not such information is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information(“Confidential Information”). Any Software, associated documents and any performance information relating to the Software, as well as information prepared or produced in connection with this Agreement by Checkbox at any time or is disclosed by Checkbox in connection with this Agreement, will be deemed Confidential Information of Checkbox.

10.2.        Obligations of the Receiving Party. Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its Personnel having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 10. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document:

(a)        was rightfully in its possession or known to it prior to receipt of the Confidential Information;

(b)        is or has become public knowledge through no fault of the Receiving Party;

(c)        is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or

(d)        is independently developed by Personnel of the Receiving Party who had no access to such information.

(e)        The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

 

11.   INTELLECTUAL PROPERTY RIGHTS

11.1.        Intellectual Property Rights. A Party’s ownership of, or any right, title or interest in, any and all intellectual and industrial protection rights throughout the world including copyright (past, present and future copyrights and rights in the nature of or analogous to copyright), inventions, patents, designs, registered and unregistered trademarks, know-how and circuit layout rights, whether registrable or not, anywhere in the world (“Intellectual Property Rights”) in all products, services, software, documentation and other material provided by either Party under this Agreement, including any developments, updates, advancements, modifications or adaptations of those products, services, documentation and any other material, will not be altered, transferred or assigned by virtue of this Agreement. For the avoidance of doubt:

(a) Checkbox is the owner of the Software, documentation related to the Software, Intellectual Property Rights in the Professional Services (unless otherwise specified in the Statement of Work) and any anonymised analytics of Data and usage generated by the Software; and

(b) you are the owner of, or that you have secured any and all authorisations and rights to allow us to use, any content, design, documentation and any other input that has been provided to Checkbox or has been included or generated in the creation or use of the Software or an App.

11.2.        Use of Your Intellectual Property. You grant Checkbox a non-exclusive, royalty free, non-transferable and revocable licence to use any of your Intellectual Property Rights as reasonably required for Checkbox to provide the intended operation of the Software to you.

11.3.        Intellectual Property of Software Developments and Professional Services. Any Intellectual Property Rights created as a result of modifications and developments to the Software, or as a result of the provision of the Professional Services to you (unless otherwise specified in the Statement of Work), will vest in Checkbox on creation and to the extent that such Intellectual Property Rights do not automatically vest in Checkbox, you must promptly do any and all acts reasonably requested by Checkbox for the Intellectual Property Rights to vest in Checkbox.

 

12.   SECURITY STANDARDS

12.1.        Information Security Management System. Checkbox will maintain an information security management system (“ISMS”). Checkbox will ensure that the ISMS is documented available and communicated to Checkbox Personnel.

12.2.        Handling Confidential Information and Data. Checkbox will only use Confidential Information and Data for the specific purpose for which it was provided to Checkbox, as permitted under this Agreement, or as otherwise authorised in writing by you, and shall only reproduce and store such Confidential Information and Data to the extent necessary for these purposes. Checkbox and its Personnel will implement and maintain appropriate administrative, technical, and physical safeguards to:

(a)        ensure the security and confidentiality of your Confidential Information and Data;

(b)        protect against anticipated threats or hazards to the security or integrity of Confidential Information and Data; and

(c)        protect against unauthorised access to or use of Confidential Information and Data.

12.3.        These safeguards shall include, without limitation, a written information security plan; information access controls that require appropriate authorisation, generate audit trails of approvals and require periodic reviews by asset owners; systems protections (e.g. intrusion protection); physical security measures; and a security awareness program, including employee training.

12.4.        Business Continuity. Checkbox will have documented business continuity management plans in place, which must be reviewed annually to provide assurance of the availability of critical services provided.

12.5.        Evidence of Compliance. Checkbox will provide you with information as may be reasonably requested from time to time with regard to Checkbox’s compliance with its obligations under this Section 12 (Security Standards).

12.1.        Incident Notification. Checkbox will inform you of any incidents, vulnerabilities, and security concerns, including information security breaches, as they are identified within a reasonable and practical timeframe.

 

13.   WARRANTIES

13.1.        General Warranties. Each Party warrants that:

(a)        it has the right, power, authority and entitlement to execute this Agreement and perform its obligations under this Agreement;

(b)        this Agreement constitutes a legal, valid and binding obligation and is enforceable in accordance with its terms by appropriate legal remedy;

(c)        in entering into and performing its obligations under this Agreement it has not, and will not, be in breach of any relevant law or any obligation owed to another person;

(d)        there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved and that will or may have an adverse effect on its ability to comply with this Agreement;

(e)        it has all necessary licenses, approvals, permits and consents to enter into and perform its obligations under this Agreement; and

you warrant that:

(f)        you have all hardware, software and services which are necessary to access and use the Software; and

(g)        all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Software and Professional Services.

13.2.        Software Warranties. Checkbox warrants that to the best of its knowledge the Software does 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 Software. Checkbox further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and Checkbox’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.

13.3.        Warranty Disclaimer. Except as expressly set forth in section 13.1 (general warranties) and 13.2 (software warranties), Checkbox and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. To the maximum extent permitted by law, Checkbox will not be liable, and you waive and release Checkbox from any liability (including any Liabilities) for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Checkbox. To the maximum extent permitted by law, neither Checkbox nor any of its third-party suppliers makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any Software or any content therein or generated therewith, or that:

(a)        the use of any Software will be secure, timely, uninterrupted or error-free;

(b)        the Software will operate in combination with any other hardware, software, system, or data;

(c)        the Software (or any products, services, information, or other material purchased or obtained by you through the Software) will meet your requirements or expectations);

(d)        errors or defects will be corrected; or

(e)        except as expressly set forth in section 13.2 (software warranties), the Software is free of viruses or other harmful components.

13.4.        Nothing in this Agreement excludes any applicable statutory right that may apply to you which cannot be excluded, restricted or modified (Statutory Rights). If any Statutory Rights apply to you, the duration of applicable statutorily required warranties, if any, will be limited to the shortest period permitted by law.

 

14.   LIABILITY AND INDEMNITIES

14.1.        General Indemnity. Despite anything to the contrary, to the maximum extent permitted by law, each Party will at all times indemnify the other Party from and against any Liability arising out of or in any way connected with any proceedings commenced against the other Party where such Liability results from:

(a)        any fraudulent or unlawful act or omission of the first party or its Personnel; or

(b)        any breach of confidentiality obligations by the first party or its Personnel.

14.2.        Liability Cap. Despite anything to the contrary, to the maximum extent permitted by law, each Party’s and its suppliers’ aggregate liability for any Liability to the other arising out of or related to this Agreement will not exceed the amount actually paid by you to us under this Agreement in the 12 months immediately preceding the Liability.

14.3.        Proportionate Liability. Despite anything to the contrary, to the maximum extent permitted by law, each Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent that the Liability was caused, or contributed to by, the acts or omissions of the other Party.

14.4.        Liability Waiver. Despite anything to the contrary, to the maximum extent permitted by law, in no event will a Party be liable to the other for any Consequential Loss.

14.5.        Exclusions. Despite anything to the contrary, to the maximum extent permitted by law, Checkbox will not be liable to you for any Liability caused or contributed to by:

(a)        a fault or defect in any item of Your Environment; or

(b)        any Force Majeure Event.

(c)        failure caused by any third-party service provider used to provide the Software (including Third Party Inputs).

15.   TERM

15.1.        This Agreement is effective as of the Effective Date and continues until expiration of all Licence Terms, unless terminated earlier under Section 16.

15.2.        Automatic Renewal. At least 30 Business Days prior to the expiry of the current Licence Term, 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 Licence Term. If a Party has not given notice pursuant to this clause, all licenses will automatically renew for periods equal to your initial Licence Term (and you will be charged at the then-current rates). 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 Licence Term to enable the Parties to meet to discuss any proposed variation.

 

16.   TERMINATION

16.1.        Termination for Cause. Either Party may terminate this Agreement (including all related Orders) if the other Party:

(a)        fails to remedy any material breach of this Agreement within 30 days after written notice;

(b)        ceases operation without a successor; or

(c)        seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that Party (and not dismissed within sixty (60) days thereafter).

16.2.        Termination for Convenience. You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to Checkbox, but, upon any such termination

(a)        you will not be entitled to a refund of any pre-paid fees; and

(b)        if you have not already paid all applicable fees for the then-current Licence Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable, and you agree that any such amount is a genuine pre-estimate of our loss for your termination of this Agreement in accordance with this Section 16.2.

16.3.        Effects of Termination for Checkbox. Upon termination of this Agreement, Checkbox will:

(a)        immediately stop providing access to the Software and related services;

(b)        immediately stop providing the Professional Services (if applicable);

(c)        immediately stop placing orders for supplies or services required in connection with providing access to the Software and related services; and

(d)        return to you or destroy all property, including Confidential Information, Intellectual Property and Data in our possession that belongs to you upon written request; and

(e)        where you have terminated this Agreement in accordance with Section 16.1 (Termination for Cause), Checkbox will refund you any prepaid Software fees covering the remainder of the then-current Licence Term after the effective date of termination.

16.4.        Effects of Termination for you. Upon termination of this Agreement, you will immediately:

(a)        immediately cease and desist from any use of the Software;

(b)        promptly return to Checkbox all property, including Confidential Information and Intellectual Property, in your possession that belongs to Checkbox;

(c)        immediately pay any fees payable to Checkbox for the period prior to the effective date of termination; and

(d)        where Checkbox has terminated this Agreement in accordance with Section 16.1 (Termination for Cause) or if you have terminated this Agreement in accordance with Section 16.2 (Termination for Convenience), you will pay any unpaid fees, including any fees covering the remainder of the then-current Licence Term promptly after the effective date of termination or any fees for the Professional Services.

16.5.        Survival. 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. The following Sections will survive any termination or expiration of this Agreement: 2.2 (Restrictions), 7.3 (Limited Rights on No-Charge Software), 8 (Audit and Monitoring), 9.1 (Payment), 9.2 (Taxes), 10 (Confidentiality), 11 (Intellectual Property Rights), 13.3 (Warranty Disclaimer), 14 (Liability and Indemnities), 16 (Termination), 18 (Dispute Resolution), 20 (Notice), 21 (Force Majeure), 22 (Assignment), 23 (Waiver), 24 (Severability), 25 (Entire Agreement), and 26 (Governing Law and Jurisdiction).

 

17.   PUBLICITY RIGHTS

We may identify you as a Checkbox customer in our promotional materials. You may request that we stop doing so by submitting an email to [email protected] at any time. Please note that it may take us up to 30 days to process your request.

 

18.   DISPUTE RESOLUTION

18.1.        Informal Resolution. If a dispute arises out of or in relation to this Agreement, no Party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has complied with this clause. A Party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other Party specifying the nature of the dispute. On receipt of that notice by the other Party, the Parties’ representatives must endeavour in good faith to resolve the dispute expeditiously and failing agreement within 20 Business Days of the dispute, either Party, by giving notice to the other, may refer the dispute to the Parties’ chief executive officers or directors (or their nominees) who, each Party must ensure, must cooperate in good faith to resolve the dispute within 20 Business Days of the dispute being referred to them.

18.2.        Formal Resolution. If the chief executive officers or directors (or their nominees) fail to resolve the dispute within 20 Business Days of the dispute being deferred to them, the Parties must, at the written request of either Party and within 10 Business Days of receipt of the request, submit to mediation, expert evaluation or determination or similar techniques agreed to by them. If the Parties do not agree within 5 Business Days of receipt of the notice as to the dispute resolution technique and procedures to be adopted, the timetable for all steps in those procedures, and the selection of compensation of the independent person required for such a technique, then the Parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of New South Wales and the President of the Law Society of New South Wales or the President’s nominee will select the mediator and determine the mediator’s remuneration.

 

19.   CHANGES TO THIS AGREEMENT

19.1.        Modifications Generally. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our website, or in the Software itself).

19.2.        Paid Licenses. If we modify the Agreement during your Licence Term, the modified version will be effective upon your next renewal of a Licence Term. In this case, if you object to the updated Agreement, as your exclusive remedy, you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable Licence Term. To exercise this right, you must provide us with notice of your objection and termination within 30 days of us providing notice of the changes. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

19.3.        No-Charge Software. You must accept the modifications to this Agreement to continue using the No-Charge Software. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Software.

 

20.   NOTICES

20.1.        Form of notice. A notice or other communication must be in writing in English and may be:

(a) delivered personally;

(b) given by an agent of the sender;

(c) left at a Party’s current delivery address for notices as set out in the Orders;

(d) sent by prepaid mail to a Party’s current postal address for notices as set out in the Orders; and/or

(e) sent by email to a Party’s current email for notices as set out in the Orders.

20.2.        Receipt of notice. A notice or communication is taken as having been given:

(a) when left at a Party’s current delivery address for notices; or

(b) if mailed within Australia to an Australian address, on the third Business Day after posting; or

(c) if mailed outside of Australia to an Australian postal address or within Australia to an address outside of Australia, on the tenth Business Day after posting; or

(d) if sent by email, when the email is sent to the receiving party at the email address specified in the Orders, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.

 

21.   FORCE MAJEURE

If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by causes beyond either Party’s reasonable control (“Force Majeure Event”), including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, pandemic, nuclear contamination, terrorism, war or civil riot, and the affected Party is 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 Force Majeure 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 Event is removed.

 

22.   ASSIGNMENT

This Agreement is personal to the Parties.  Each Party must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the other Party’s prior written consent (such consent not to be unreasonably withheld). Any purported dealing in breach of this section is of no effect.

 

23.   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.

 

24.   SEVERABILITY

If any provision (or part of it) of the Agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of this Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this Agreement and the remaining provisions (and remaining part of the provision) of the Agreement are valid and enforceable.

 

25.   OTHER AGREEMENTS

If this Agreement and any other agreement agreed between the Parties (Other Agreement) are inconsistent, ambiguous or include discrepancies, to the extent of the inconsistency, ambiguity or discrepancy, the terms of the Other Agreement will prevail, unless otherwise agreed between the Parties.

 

26.   GOVERNING LAW AND JURISDICTION

This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

 

27.   DEFINITIONS

Capitalised terms are defined in this Section 27, and others are defined contextually in this Agreement.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control of a Party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“App” means an application built using the Software.

“Authorised Users” means the specific individuals for whom you have paid the required fees and whom you designate through the applicable Software. Authorised Users may be your or your Affiliates’ Personnel. Authorised Users also include any External Users that you permit to use the Software, subject to Section 3.3 (External Users).

“Business Day” means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays

“Checkbox Policies” means Checkbox’s Acceptable Use Policy, Privacy Policy, Support Policy, and (unless otherwise specified) any other policies or terms referenced in this Agreement.

“Consequential Loss” includes any consequential, indirect, special or incidental loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

“Data” means all of the information, documents, content, code, video, images and other data provided by Authorised Users or made available by Authorised Users to the Software, or otherwise accessed by Checkbox in providing the Software.

“Effective Date” means the date which is the earlier of your initial access to or use of the Software; or the effective date of the first Order referencing this Agreement, unless specified otherwise in an Order.

“Liability” means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (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 and whether involving a third party or a Party to this Agreement or otherwise.

“Licence Term” means your permitted licence term for the Software, as set forth in an Order.

“Order” means Checkbox’s applicable ordering documentation or purchase flow referencing this Agreement. Orders may include purchases of Software licenses, Support, renewals, or purchases to increase or upgrade your Scope of Use.

“Party” means a party to this Agreement and “Parties” means both of them.

“Personnel” means employees, representatives, consultants, contractors, agents, or other third parties who are acting for a Party on that Party’s behalf.

“Professional Services” means the services that we agree to provide to you under clause 5.2, which is as further particularised in the Statement of Work.

“Scope of Use” means your authorised scope for the Software as specified in the applicable Order which may include:

(a)        number and type of Authorised Users;

(b)        number of Apps available for use;

(c)        number of submissions made through Apps in a given period;

(d)        storage or capacity;

(e)        entity, division, business unit, website, field of use; or

(f)        other restrictions or billable units.

“Sensitive Personal Information” means information, which may be collected or used to identify a person, and which is sensitive in nature, including, but not limited to, information relating to racial or ethnic origin, political opinions, religion, trade union or other professional associations or memberships, philosophical beliefs, sexual orientation or practices, criminal records, health information or biometric information.

“Software” means the Checkbox automation and workflow software platform and its variations. Your Order will specify the Software, including the variation, that you may use.

“Statement of Work” means a document outlining the nature and scope of the engagement for Professional Services from Checkbox, including any objectives, project phases, deliverables and specifications; operating guidelines for the provision of the Professional Services; acceptance testing procedure, if applicable; and the relevant fees.

“Support” means Checkbox’s support services for the Software, as further described in the Checkbox Support Policy. Your level of Support will be specified in your Order.

“Third Party Inputs” means third parties or any goods and services provided by third parties, including customers, end users, suppliers, or services providers or other subcontractors which the provision of the Software may be contingent on, or impacted by.

“Updates” means available updates to the Software, such as bug fixes, patches, upgrades, enhanced functions, plug-ins and new versions.

“Your Environment” means all hardware, software, information technology and telecommunications services and systems, network or any device controlled by you or your Personnel.