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
Business Day means a day on which banks are open for
general banking business in Victoria, excluding Saturdays, Sundays and
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
Confidential Information includes information or
- 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
- 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
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
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
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
- the Party is deregistered under the Corporations Act 2001 (Cth)
or other legislation or notice of its proposed deregistration is given
- 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
- 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
Intellectual Property Rights means all present and
future rights to:
- 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
Payment Terms means 30 days from the date of the
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 Elevio Software as a service
described on the Site.
Service Level means any service levels set out on the
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
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.