This Customer Agreement is between Zetaris Pty Limited ABN 24 158 548 997 (Zetaris) and the purchaser of the Product (Customer).

1         Grant of Rights
1.1      Use rights. Zetaris grants Customer a non-exclusive and non-transferable right to use, and permit its End Users to use, the Product, solely for the Approved Purpose during the Subscription Term, subject to compliance with the terms of the Agreement.
 
 
2         Use of Product
2.1      Product Restrictions. Customer must ensure that:
(a)    neither Customer nor any End User reverse engineers, decompiles or disassembles the Product, views or gains access to the source code to the Product, or uses the Product to provide any product or service that is an alternative, substitute or competitor to the Product;
(b)    neither Customer nor any End User copies, develops any modification, enhancement, derivative work or other development of the Product or incorporates any Customer, End User or third party material into the Product (except as expressly permitted under the Approved Purpose);
(c)    neither Customer nor any End User uploads to the Product any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
(d)    neither Customer nor any End User removes any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Product;
 
 
3         Customer responsibilities
3.1      Usage responsibilities. Customer uses the Product at its own risk and is solely responsible for:
(a)    ensuring that the Product, accessed and used (and in the case of the Software is installed and hosted) strictly in accordance with the Agreement. Customer is responsible for each act and omission of an End User in connection with the Product as though it were an act or omission of Customer;
(b)    obtaining all consents, licences and approvals necessary to lawfully collect, upload, store, process and disclose all data and logic (including that protected by Intellectual Property Rights, confidentiality, or privacy) uploaded to the Product, all output of the Product and the Approved Purpose;
(c)    where the Customer has purchased the Software, secure the Environment and Software to the standards required under applicable laws, regulations and contractual obligations.
 
 
4         Verification and Taxes
4.1      Verification. Zetaris may on 14 days notice conduct an audit of Customer s use of the Product and compliance with the Agreement from time to time during the Subscription Term. Customer must provide all access to the Environment (in the case of the Software), End Users, records, premises and personnel reasonably requested by Zetaris in connection with any such audit. Zetaris must bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Product in breach of the Agreement, in which case, Customer must immediately:
(a)    pay to Zetaris all additional Fees payable in respect of any excess use (at Zetaris then current list prices) in addition to Zetaris reasonable audit costs; and
(b)    take all other steps required to remedy the breach of the Agreement and prevent its recurrence at its own cost.
4.2      Taxes. The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, VAT, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).
 
 
5         Intellectual Property Rights
5.1      Ownership. Each party will retain its Pre-existing Intellectual Property Rights (IPR) and nothing in this agreement assigns or transfers the Pre-existing IPR of one party to the other.
5.2      Developed IPR. Both parties will jointly own all developed IPR for the key use cases immediately from creation (including part creation). Developed IPR may rely on pre-existing Zetaris IPR to function and therefore this element of the key use case is retained by Zetaris. Both parties can utilise the developed IPR included in the key use cases at any time for any purpose. Any key use case that relies on pre-existing Zetaris IPR can only be used whilst the monthly fee for that particular use case is being paid by Customer.
5.3      Consents. Both parties must procure from any customers or representatives all necessary consents to all acts in relation to all key use cases made and where any act would otherwise infringe moral rights with respect to any key use cases.
5.4      Notice of infringement. Customer must immediately notify Zetaris in writing upon becoming aware of any:
(a)    infringement or unauthorised use of the Product by any person, including any End User; or
(b)    claim by any person that use of the Product by Customer in accordance with the Agreement infringes any copyright or patent owned by that person in Australia (IP Claim).
 
 
6         Privacy and data protection
6.1      Privacy. Each party must comply with all Privacy Laws applicable to that party (whether as controller or processor) in Processing any Personal Data comprised in the Customer Data. Customer acknowledges that Personal Data, other than that comprised in the Customer Data, will be Processed in accordance with Zetaris privacy policy.

6.2      Customer Data in Azure. The Customer data in the Azure account will be securely configured according to Azure recommended security standards plus any additional security requirements specified in writing by Customer. Zetaris will not accept any liability in relation to Customer data, including but not restricted to data breaches, cyber-security breaches, hacking, ransom attacks, or making Customer data in any way available to 3rd parties. Zetaris commits to notify Customer within 24 hours of being made aware of any data security incident. All Customer data used during the Minimum Viable Product (MVP) will be assumed as non-sensitive data solely to be used to demonstrate MVP requirements.
6.3      Data Breaches. If either party becomes aware of any actual or suspected Data Breach affecting the Customer Data stored in the Service:
(a)    that party must promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;
(b)    Zetaris must provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Data Breach;
(c)    Customer is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to clause 6.2(e);
(d)    Customer must not reference Zetaris in any notification or communication relating to the actual or suspected Data Breach without Zetaris prior written approval as to the form and content of the reference; and
(e)    Zetaris may make a notification or communication about the Data Breach if Customer fails to do so and Zetaris is required to do so under applicable Privacy Laws.
 
 
7         Confidentiality
7.1      Obligation of confidence. Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 7.
7.2      Permitted use. The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.
7.3      Permitted disclosures. The Recipient may disclose Confidential Information of the Discloser:
(a)    to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
(b)    to the extent required by law or the rules of any stock-exchange; and
(c)    with the prior written consent of the Discloser.
To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party s name and logo, without being in breach of this clause.

 

 

8         Warranties and indemnities

8.1      Warranties. Zetaris warrants that:
(a)    the Service will operate substantially in accordance with its published specifications during the Subscription Term
(b)    the Software will operate substantially in accordance with its published specifications for a period of 90 days following being made available to Customer; and
(c)    it will provide the Product, Support Services and any Service Credits with due care and skill.
Zetaris must, as Customer s sole and exclusive remedy, repair, replace or resupply any part of the Product, Support Services or Service Credits which do not comply with the warranties in this clause within a reasonable period of confirmation of the non-compliance.
8.2      No other terms. To the extent permitted by law, Zetaris excludes all conditions, warranties and guarantees other than those set out expressly in the Agreement. Without limitation, Zetaris does not warrant that the Product, Support Services or any Service Credits will be:
(a)    continuous, free from errors, omissions, defects, security risks or vulnerabilities; or
(b)    fit for any purpose or meet the requirements of Customer or any End User.


8.3      Non-excludable terms. If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, Zetaris liability for breach of such condition, warranty or guarantee is limited (at Zetaris option) in the case of:
(a)    the Software, to the repair or replacement of the Software, the supply of equivalent Software, or payment of the cost of the same; and
(b)    the Service, Support Services or Service Credits, to the resupply of the Service, Support Services or Service Credits, or payment of the cost of the same.
 
8.4      Customer indemnity. Customer indemnifies Zetaris and its Affiliates against and must pay on demand all loss and damage suffered or incurred by any of them arising out of or in connection with:
(a)    any claim relating to the installation, access to, use of, uploading of data or logic to, use or reliance on any output of the Product or Approved Purpose by Customer or End Users, including any claim made by a third party; and
(b)    any breach of clauses 2, 3, 5, 6 and 7
in each case, except to the extent that the claim or breach is caused or contributed to by Zetaris.
8.5      Sole and exclusive remedy. Without prejudice to the termination rights of each party:
(a)    clause 9.5 sets out Zetaris sole and exclusive remedy in respect of the matters indemnified by Customer.
9         Liability
9.1      Exclusion of Indirect Loss. To the extent permitted by law, each party excludes any and all liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any Indirect Loss.
 
9.2      Limitation of liability. The liability of a party arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by Customer under the Agreement in that Subscription Year, subject to clause 9.3.

9.3      Unlimited liability. The limitation of liability in clause 9.2 does not apply to the liability of a party:

(a)    under any indemnity given by that party;

(b)    to pay Fees that are due and payable; or

(c)    for any matter in respect of which liability may not be limited at law.

(d)    2, 3, and 5, of the Agreement and that Zetaris is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those clauses (in addition to any other remedies).

10       Miscellaneous


10.1    Entire agreement. This Customer Agreement, the Schedule and any SOW are the entire agreement between the parties in respect of their subject matter. In the event of any inconsistency between the terms of this Customer Agreement, the Schedule and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.

10.2    Amendment. Amendments to this Agreement can only be made by written agreement by both parties.

10.3    Force Majeure Events. Zetaris is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.

10.4    Severance. If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.

10.5    Transfer. Customer must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of Zetaris.

10.6    Waiver. A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

10.7    Third party rights. No person other than Zetaris and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.

10.8    Relationship of the parties. The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.

10.9    Open Source. Zetaris Software utilises open source software. For a listing of the Open Source software utilised and the applicable Open Source licence acknowledgements please refer to the Zetaris website.

10.10  Governing Law. The Agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.

 
11       Definitions

In this Customer Agreement, these terms have the following meanings:

Affiliate means of a party means an entity that Controls, is Controlled by, or is under common Control with that party.

Agreement means the agreement consisting of this Customer Agreement, and Schedule 1 which is included as an attachment to this Agreement, includes additional conditions and requirements which are part of this Agreement.

Approved Purpose means a specific approved use of the Product.

Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:

(a)    including the terms of the Agreement and, in the case of Zetaris, all source code to, Zetaris Data comprised in, and pricing for the Product; but

(b)    excluding any such information that is in the public domain (other than as a result of a breach of confidence).

Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:

(a)    direct or indirect ownership of more than 50% of the voting rights of such person; or

(b)    the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.

Credits means any support, implementation, training, data migration or other services provided to Customer in conjunction with Product, not forming part of the Support Services, as agreed with Zetaris.

Customer Data means any data, information or material uploaded to, or Processed through, the Service by Customer or End Users, excluding Zetaris Data.

End User means any person who accesses or uses the Service through Customer s subscription or the Software licensed to Customer.

Environment means, in the case of the Software, the Customer s computing environment specified, and in the case of the Service, Zetaris computing environment.

Fees means the fees, costs and expenses for the supply of the Product and any Service Credits specified in the applicable SOW.

Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.

Indirect Loss means:

(a)   loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and

(b)   any loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.

Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.

IP Claim is defined in clause 5.4(b).

Personal Data means information about an identified individual or an individual who is reasonably identifiable, including personal information and personal data as defined in applicable Privacy Law.

Privacy Law means any applicable law governing the Processing of Personal Data, including (to the extent applicable) the Privacy Act 1988 (Cth), General Data Protection Regulation (EU) 2016/679, UK Data Protection Act 2018 (DPA), UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, the Privacy and Electronic Communications Regulations 2003, and California Consumer Privacy Act (2018).
Processing means to collect, store, use, copy, disclose or perform any other set of operations on.

Product means the Service or Software, as specified in the Order.

Service means the Zetaris Platform delivered by the internet as a service, including any updates.

Service Credits means any support, implementation, training, data migration or other service not forming part of the Service or Support Services.

Software means the object code form of the Zetaris Enterprise Software specified in the Order, including any Updates.

SOW means a statement of work setting out the details of the Service Credits to be provided by Zetaris, including the agreed scope and fees for the Service Credits.

Subscription Term means the term agreed in the Order, SOW, or applicable agreement.

Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.

Support Services means:

(a)   online, or email support for Product defects that require access or changes to the source code for the Product (in the case of the Software, this only applies to the current and immediately prior version of the Software); and

(b)   making Updates available from time to time.

Updates means any new version, release, update, patch, fix, configuration or other modification of the Product made available by Zetaris to its customers generally during the Subscription Term.

Zetaris Data means data, information or material comprised in the Product as provided by Zetaris.
 
 

 

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