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Mentorloop – Software as a Service Agreement

Terms and Conditions

  1. Introduction

    1. This Agreement is between Mentorloop Pty Ltd (ABN 32 612 069 119) of Level 2, 134 Flinders St, Melbourne 3000 (“Supplier”), and the party specified in item 1 in the Schedule (“Customer”). It becomes effective on the date specified in item 2 of the Schedule (“Effective Date”) and will continue for the term also set out in that item (“Term”).
    2. Supplier has developed, and hosts, mentoring software which provides a platform for the running of mentoring programs including allowing users to communicate, store documents and log events that take place as part of their mentoring relationship (the “Platform”).
    3. Customer wishes to access and use the Platform, and make it available to Users, on a “software as a service” basis via an online environment.  Supplier has agreed to provide the Platform on such basis, and to supply associated support services as set out in the Schedule (together, the “SaaS Offering”).
  2. Further defined terms

    In this Agreement unless the context otherwise requires:

    1. “Confidential Information” means any information of a party (“discloser”) that a reasonable person would assume – by its form, nature, content or mode of transmission – to be confidential, whether written or oral; but it excludes information which: (i) was rightfully in the other party’s (“recipient”)  possession or known to it prior to its receipt from discloser; (ii) was rightfully disclosed to recipient by a third party; (iii) is publically available (and didn’t become public because of a breach of confidentiality by recipient); and/or (iv) is independently developed by recipient without use or reference to discloser’s Confidential Information;
    2. “Customer Content” means any information, data, graphics, comment, text or other materials that Customer or any User uploads to the Platform or transmits or communicates through the Platform; 
    3. Development Services” has meaning given to it clause 4.1;
    4. “Documentation” means Supplier’s standard documentation and user manuals, made available by Supplier in relation to the SaaS Offering;
    5. “Fees” means the (GST exclusive) fees payable for the SaaS Offering or Development Services, as specified in item 3 of the Schedule and as amended from time to time under the terms of this Agreement;
    6. Supplier Content” means any graphics, names, marks, information, images, text, or other material provided by Supplier and included within the Platform;
    7. “Intellectual Property Rights” means any existing or future, registered or unregistered, intellectual property rights including any patent, trade mark, copyright, design, business name or trade secret;
    8. “Users” means individuals (including Customer’s members) authorised by the Customer to access and use the Platform and who have been provided user identifications and passwords to do so;   
    9. “Use Limits” means any restrictions on use of the SaaS Offering (based on the then current Fees payable), as specified in item 8 of the Schedule;  
    10. Working Day” means a Monday to Friday, excluding public holidays in Melbourne, Victoria; 
    11. Working Hours” means 8.30am to 5.30pm on a Working Day; and 
    12. headings are for ease of reference only and do not affect the meaning of this Agreement; a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; a reference to the word ‘including’ or ‘includes’ is to be construed without limitation to the preceding words; the word “acknowledge” is to be interpreted as “acknowledge and agree”; and a reference to “$“ or “dollar” is to the Australian currency.
  3. Delivery and responsibility

    1. In consideration for Customer’s payment of the Fees, the Supplier will:
      1. provide the SaaS Offering to the Customer, using its reasonable efforts to meet any start date agreed in writing (subject to delays caused by the Customer or any third party); and
      2. grant the Customer a non-transferable, non-exclusive right to access and use the Platform, and to allow such access and use by its Users, subject to the applicable User Limits.
    2. In order for the Supplier to effectively provide the SaaS Offering, the Customer will provide information and assistance, and perform any responsibilities, as set out in item 5 of the Schedule or otherwise agreed in writing. 
    3. Each User must register to access and use the Platform and to perform certain activities in the use of the Platform. Customer must ensure that each User provides accurate, current and complete information as requested or directed by the Platform, and to promptly update this information to maintain its accuracy. Supplier has the right to suspend or terminate any User’s registration and to refuse any and all current or future use of the Platform by that User if it suspects that such information is inaccurate or incomplete. 
    4. Customer is responsible for all activities that occur in, or are related to, User accounts (including any traffic or use of the SaaS Offering through User’s’ or Customer’s login credentials, whether by or on behalf of Customer / Users or by unauthorised third parties as a result of Customer or the relevant User not having kept login credentials secure) and for all Customer Content stored on or transmitted through Platform. In order to maintain the integrity of the Platform, Supplier may (without notice and without being obliged to do so), monitor, block, modify or remove any such Customer Content, and will not be liable in any way for doing so.   Customer must immediately notify Supplier if it becomes aware of any unauthorised use of any login credentials or any other breach of security.
    5. Customer must not (or authorise any person to):
      1. make the Platform, the SaaS Offering or any Supplier Content available to any third party not authorised by Supplier to access and use it;
      2. send or store code (including malicious code and malware) that could result in damage to the Platform or the SaaS Offering; 
      3. integrate or link the Platform with other software (without Customer’s prior written consent); 
      4. use the Platform for any illegal or offensive purpose, or to retrieve, store, manipulate, process, transmit, display or forward any Customer Content that is illegal, defamatory or offensive;
      5. wilfully interfere with or disrupt the integrity of the Platform or the SaaS Offering; nor
      6. attempt to gain unauthorised access to any underlying software or infrastructure used to provide the Platform or the SaaS Offering or any of Supplier’s related system or networks.
    6. The Platform may contain links to other websites, which are provided for User’s’ convenience only. Supplier does not endorse (and is not responsible or liable for) those websites, their operators, functionality, content or the goods and services that they describe or make available.  If Users choose to access these linked sites, they do so at their own risk and subject to those third party terms and conditions and privacy policies.
    7. Customer acknowledges that:
      1. the Supplier Content is subject to change at any time without notice and may contain errors;
      2. Supplier may at any time modify, or temporarily suspend access of Customer / Users to, the Platform and/or any Supplier Content, with or without notice, for any reason (including scheduled maintenance, security reasons or if Supplier believes that Customer has breached this Agreement). Supplier will not be liable to Customer or any third party for any such modification or suspension;
      3. Supplier may, at any time, change the location from which the SaaS Offering is provided and the Customer / Supplier data is hosted (and may use a third party hosting service supplier / environment for that purpose), provided that Supplier must not host any Customer data from outside of Australia without the prior written consent of Customer; and
      4. Supplier may (at its discretion) modify the Platform (including its functionality, data formats and other matters) and the support services from time to time, so long as any such modifications do not substantially impact upon Customer’s ability to continue to use the Platform in the manner contemplated by this Agreement.
  4. Development services

    1. Supplier will also provide development services, at Fees agreed in advance between the parties, to modify and further develop the Platform for Customer, to meet any requirements it has, that:
      1. are reasonably needed by Customer in respect of its User base; and
      2. can be implemented by Supplier without unduly comprising the integrity or relevance of the Platform to its other users and without affecting the consistency or overall effectiveness of core branding, theme or message across the website,the particulars of which will set out in item 7 of the Schedule (“Development Services”).
    2. The Customer acknowledges that nothing in this Agreement obligates the Supplier to provide any Development Services unless agreed under item 7 of the Schedule.
  5. Confidential Information and Privacy

    1. If a party (“recipient”) receives Confidential Information from the other party (“discloser”), recipient must hold it in confidence and not (unless with discloser’s prior written consent) disclose or use it except as allowed by this Agreement or as required by law. Confidential Information may be disclosed to recipient’s employees, agents, professional advisors and contractors on a need-to know basis only, and recipient must ensure that those persons maintain such Confidential Information in accordance with this clause. Recipient will, on request of discloser, return to discloser all Confidential Information in its possession or certify the destruction of it. 
    2. Nothing in this Agreement will (i) preclude Supplier from using any ideas, methods, concepts and know-how developed in the course of providing the SaaS Offering or (ii) limit Supplier’s rights to provide similar services to other customers. Supplier may use any feedback provided by Customer, related to any SaaS Offering, for any Supplier business purpose, without requiring consent.
    3. To the extent that a party is bound by the Privacy Act 1988 (Cth, Australia) or any other applicable privacy laws or codes, it will comply with those laws and codes when accessing, collecting, storing, using or otherwise handling personal information in connection with this Agreement.
  6. Fees

    1. Fees will be payable on the terms set out in item 4 of the Schedule and are non-cancellable and non-refundable. 
    2. Supplier may reasonably increase the Fees (including to reflect increased costs of delivering the SaaS Offering):
      1. at any time if the Use Limits are exceeded; or
      2. at the end of the Initial Term or any Renewal Term (as described in item 2 of the Schedule), by providing at least 30 days’ notice of the change prior to expiry of the then current Term.
    3. If Customer’s account is 60 days or more overdue, Supplier may, with prior written notice, suspend the SaaS Offering, without liability, until such amounts are paid in full. 
  7. Title and intellectual property

    1. Supplier (or its relevant licensor, as the case may be) retains all right, title, Intellectual Property Rights and other proprietary interests in or relating to the SaaS Offering – including in the Supplier Content and any software platform on which the Platform operates.
    2. Customer must not (or authorise any person to):
      1. copy, modify or create derivative works from the Supplier Content, except with Supplier’s prior written consent;
      2. in any way injure the reputation or distinctiveness of any branding, logos or creatives included in the Supplier Content;
      3. challenge or contest Supplier’s ownership of any Intellectual Property Rights in or relating to the Supplier Content; nor
      4. seek to register or use any graphics, logos, marks, names or images which are deceptively similar to those used by Supplier as trade or brand indicia (including the word “Mentorloop”).
    3. Customer or the relevant User owns all rights, title and interest (including Intellectual Property Rights) in all Customer Content. Customer must ensure that it has all necessary rights to provide any of its Customer Content to Supplier or to transmit it through, or upload it onto, the Platform. Supplier will only use Customer Content to perform its obligations and exercise its rights under this Agreement, unless the relevant owner of the Customer Content provides consent for Supplier to use that content for additional purposes.
    4. Supplier indemnifies Customer against any amount Customer is finally ordered to pay to a third party by a Court of competent jurisdiction  (or settlement agreed by Supplier) which arises from a claim alleging that Customer’s use of the Platform in accordance with this Agreement infringes the Intellectual Property Rights of that third party (although always excluding any claims arising out of the actual or alleged infringement of any (intellectual Property Rights in any open source components embedded in the Platform; and/or (ii) patent or inducing the infringement of any patent). As a requirement to this indemnity, Customer must provide Supplier with sole control of the defence under the indemnity and all reasonable assistance and cooperation.
  8. Warranties

    1. Each Party represents and warrants that it has the legal power to enter into this Agreement. 
    2. Supplier also represents and warrants that for so long as Customer continues to pay the Fees, the Platform will perform materially in accordance with the Documentation and Supplier will use all reasonable efforts to meet any agreed service levels (subject to failures caused by Customer or any third party, and to any scheduled maintenance downtime). Supplier does not warrant that Customer or its Users will have continuous access to the Platform and Supplier will not be liable if the Platform is unavailable due to computer downtime.
    3. If there is a breach of the warranty in clause 8.2, as Customer’s exclusive remedy for that breach, Supplier will, in consultation with Customer, use reasonable efforts to cure the defect in accordance with the support processes set out in item 6 of the Schedule.
    4. Customer acknowledges that:
      1. Supplier has no control over telecommunications networks or services, the internet or other technology required to make the Platform available over the internet – and accepts no responsibility or liability for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise;
      2. Supplier does not guarantee the delivery of communications over the internet; and
      3. electronic communication (including electronic mail) is vulnerable to interception by third parties – so while Supplier will use industry standard security measures to keep the Platform and Customer Content secure to the extent reasonably possible, Supplier does not guarantee the security or confidentiality of these communications or the security of the Platform / Customer Content. 
    5. Except as set out above, to the extent permitted by law, the Platform and the SaaS Offering are provided “as is” and no other warranties, whether express or implied, including warranties of merchantability, suitability or satisfactory quality, or fitness for a particular purpose, are made by Supplier. Supplier also makes no warranties with respect to any hardware, equipment or third party software which Supplier may use to provide the SaaS Offering.
  9. Limitation of liability

    1. Except in the case of a breach of Intellectual Property Rights (although in the case of Supplier excluding any infringement of any (intellectual Property Rights in any open source components embedded in the Platform; and/or (ii) patent or inducing the infringement of any patent, the liability for which will be subject to the exclusions and limitations in this clause)  or confidentiality, to the maximum extent permitted by law, neither party (including any of Supplier’s suppliers) will be liable a) for any indirect, special, consequential, incidental, or punitive damages of any nature, including loss of profit, loss of anticipated savings and or any loss of data by use of any service, regardless of whether a party knew of the potential for such damages; and b) in aggregate (for all breaches by it of this Agreement) to an extent greater than the Fees paid. 
  10. Term and terminiation

    1. This Agreement will continue in effect for the Term unless terminated by: (a) either party for the other party’s material breach that is not remedied within 30 days after notice of the breach has been received; or (b) either party for insolvency, bankruptcy or similar, suffered by the other party.
    2. Clauses relating to Confidentiality, Title and Intellectual Property, Limitation of Liability and Termination will survive termination or expiry of this Agreement. 
  11. General terms

    1. Amendments and Assignment. The terms of this Agreement may only be amended by written agreement of the parties. Customer may not assign or novate, whether by operation of law or otherwise, any of its rights or obligations under this Agreement without prior written consent of the Supplier, which consent will not be unreasonably withheld. The Supplier may assign or novate any of its rights or obligations under this Agreement to a solvent third party.
    2. Force Majeure. Except for payment obligations and obligations pertaining to non-disclosure of Confidential Information, neither party will be liable for any action taken, or any failure to take any action required to be taken, to the extent arising out of causes beyond a party’s reasonable control, including war, civil commotion, act of God, strike or other stoppage (partial or total) of labor, any law, decree, regulation or order of any government or governmental body (including any court or tribunal) and/or delays caused by an internet service provider or third party hosting facility resulting in data center outages from causes not within Supplier’s control.
    3. Notice. All notices given by a party will be delivered to the other party either personally, via certified mail, email or overnight courier. Notices will be deemed effective, if delivered personally, when delivered; if delivered via email, at the time the receiving party acknowledges receipt (by reply or other means, but excluding any auto generated reply); and if delivered via certified mail or overnight courier, on confirmation of delivery. 
    4. Validity. If any term of this Agreement is held to be invalid, it will not affect the validity of the remainder of this Agreement.
    5. Choice of Law. The laws of Victoria, Australia (excluding its conflict of laws provisions) will govern the construction of this Agreement.  Any action arising relating to this Agreement will fall within the exclusive jurisdiction of the courts of Victoria, Australia. 
    6. Entire Agreement. This Agreement and all documents incorporated by reference into it shall comprise the entire agreement regarding its subject matter and all other prior representations, proposals, and other information exchanged by the parties concerning that subject matter are superseded entirely by this Agreement.