Software Products and Services Agreement
The terms of this Software Products and Services Agreement (“Agreement”) govern the supply of Draftable’s Software, Software Services and Support Services and are accepted by You whenever you place an Order, download any Software, or access any Software Service.
In this Agreement, “You” means, where you have placed an Order directly with Draftable, the entity identified as the customer in the Order; otherwise:
your company if you are using Draftable products in your capacity as an employee or agent of such entity; or
you as an individual.
“Draftable” means Draftable Pty Ltd (ABN 76 162 136 101) of 62 Elgin St, Carlton VIC 3053, Australia. Other capitalised terms used in this Agreement are defined in clause 1.1.
Draftable may update the terms of this Agreement from time to time and will maintain the most up-to-date version at www.draftable.com/terms. Please visit this website regularly to ensure You are aware of Your rights and obligations. Your continued use of any Product will signify your acceptance of the latest version of this Agreement.
These meanings apply unless the contrary intention appears:
API means the application programming interface materials and related Documentation which enable a software developer with requisite skills to create or modify applications which interface or interact with any Software or Software Service.
Business Day means a day not being a Saturday, Sunday or public holiday in Melbourne, Australia.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Confidential Information means all information in any form, including information comprised in the Products, disclosed by or on behalf of the Discloser (whether before, on or after the date of this Agreement), including:
- information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of the Discloser;
- information derived or produced partly or wholly from the information including any calculation, conclusion, summary or computer modelling; and
- information which is capable of protection at law or equity as confidential information,
but does not include the Excluded Information.
Content means any data contained in or stored on any Draftable System or obtained by you through an API.
Controller has the meaning given in the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means any customer of Yours.
Default Rate means the Cash Rate set by the Reserve Bank of Australia.
Discloser means the party disclosing Confidential Information.
Documentation means the user manual for Software or a Software Service which describes the Software or Software Service (as the case may be) and provides related information.
Draftable Systems means any information technology systems (including websites) owned or controlled by Draftable.
Embedded Software means any third party software embedded in or provided with Draftable software.
Excluded Information means all information:
- which is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed to the Discloser;
- which the Recipient can prove by contemporaneous written documentation was already known to it at the time it was received from the Discloser, unless such knowledge arose from disclosure of information in breach of an obligation of confidence; or
- which the Recipient acquires from a source other than the Discloser where such source is entitled to disclose it.
Fees means the fees payable by You in accordance with clause 9.
Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
A person is Insolvent if:
- it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or
- it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property; or
- it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this Agreement); or
- an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or
- it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand; or
- it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this Agreement reasonably deduces it is so subject); or
- it is otherwise unable to pay its debts when they fall due; or
- something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Key means a unique key assigned to you by Draftable which allows you to access and use an API.
No-Charge Product means a Product for which Draftable charges no Fees.
Open Source Software means Software (or a component of Software) which is subject to an open source software licence.
Order means an order you submit to Draftable whether directly or via a Reseller to order any Product.
Personal Data means Your Data to that extent that such data contains “personal information” as that term is defined in the Privacy Act 1988 (Cth).
Product means Software or a Software Service (or both if the context requires).
Recipient means the party receiving Confidential Information.
Related Body Corporate has the meaning given in the Corporations Act.
Representative means, in relation to each party, an employee, agent, officer, director, auditor, advisor, partner, consultant, joint venturer, contractor or sub-contractor of that party or of a Related Body Corporate of that party.
Reseller means an entity authorized by Draftable to re-sell its Products.
Service Level Percentage means the service level percentage specified in Your Order, if any.
Software means any Draftable software that You order and/or download from Draftable, or which is otherwise provided to You by Draftable, and includes:
- related Documentation;
- any Updates to the Software;
- Supplementary Software; and
- Embedded Software.
Software Service means an online software service provided by Draftable, including the relevant Documentation.
Subscription Period is defined in clause 3.2.
Supplementary Software means add-ons, plug-ins, APIs or internet-based components of Software provided by Draftable (but excluding third party developed software or components).
Support Services means the services described in Your Order (if any).
Trial Software means Software provided to You by Draftable for trial or evaluation purposes only.
Unlawful Material means any material which:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property.
Updates means all new versions of and patches, fixes, upgrades and other updates for the Products which are provided to You by Draftable under or in connection with this Agreement.
User means You or Your employees, Representatives, consultants, contractors, agents, and Customers.
Virus means any thing or device (including any software, code, file or program) which may:
- prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
- prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
- adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Your Application means any software application, website or other interface You own, operate, have developed or will develop, to interface or interact with the Software to which an API relates.
Your Data means data inputted by You or Users for the purpose of receiving the Software Services and all results from processing such data.
Your System means any information technology systems owned or controlled by You.
1.2 References to certain general terms
Unless the contrary intention appears, a reference in this Agreement to:
- (variation or replacement) a document (including this Agreement) includes any variation or replacement of it;
- (clauses, annexures and schedules) a clause, Schedule, Annexure, Attachment or Exhibit is a reference to a clause in, or a Schedule, Annexure, Attachment or Exhibit to, this Agreement;
- (references to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- (law) law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
- (singular includes plural) the singular includes the plural and vice versa;
- (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
- (executors, administrators, successors) a particular person includes a reference to the person’s executors, administrators, successors and substitutes (including, persons taking by novation) and assigns;
- (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;
- (dollars) an amount of money is a reference to the lawful currency of Australia;
- (calculation of time) a period of time that dates from a given day or the day of an act or event is to be calculated exclusive of that day;
- (other grammatical forms) where a term is defined its other grammatical forms have the corresponding meaning;
- (reference to a day) a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending 24 hours later; and
- (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind.
Headings are included for convenience only and are not to affect the interpretation of this Agreement.
2.1 Software licence
The following provisions apply when you place an Order for Software. 1. Subject to clauses 2.2 and 2.6, Draftable grants to You a worldwide, non-exclusive, non-transferable and non-sublicensable licence to install and use the Software on Your Systems solely for Your own internal purposes. 2. The Software may only be used by the number of Users specified in the Order. If additional Users are required to use the Software, You must place an Order for those additional Users. 3. The Software may be installed on a maximum number of two (2) devices per User. Draftable grants You a right to reproduce the Software solely for this purpose.
2.2 Licence Term
- Any licence granted under clause 2.1 is valid for a period of 12 months from the date of the Order (“Initial Term”).
- You may renew any licence granted under clause 2.1 for further 12 month periods (each an “Extension Period”) by placing a new Order no later than 30 days before the end of the Initial Term or then current Extension Period.
- The Initial Term together with each additional Extension Period will constitute the “Licence Term”.
2.3 Trial Software
Draftable may offer You Trial Software from time to time. Where Draftable provides You with any Trial Software, You may only use the Trial Software for internal evaluation purposes for the trial period specified by Draftable (or, if not specified, for 14 days), and may only permit a limited number of Users (specified by Draftable) to use the Trial Software. After the trial period, You must delete all copies of the Trial Software on Your Systems. You acknowledge that Trial Software may not be fully functional. Notwithstanding any other provision of this Agreement, Draftable does not provide any warranty, indemnity or support for any Trial Software.
2.4 Open Source Software
Certain Software may include Open Source Software, in which case Draftable will supply the Software with the applicable open source software licence. To the extent required by that licence, the terms of that licence will apply to that Open Source Software in lieu of the terms of this Agreement, including any provisions governing access to source code, modifications or reverse engineering.
2.5 Source Code
- Draftable may provide You with some elements of Software in source code form. Unless otherwise notified by Draftable, You may modify such source code solely for the purpose of developing bug fixes, customisations, and additional features ("User Modifications").
- Notwithstanding any other provision of this Agreement, You may only use User Modifications internally for purposes of using the relevant Software.
- You accept all risks (including any adverse effects on Your System and the Software), and Draftable excludes all liability and responsibility (including support obligations), in respect of User Modifications.
2.6 Embedded Software
Embedded Software may be provided with third party terms applicable to Your use of that Software. Where no such terms are provided this clause 2.6 applies.
- You may only use Embedded Software for Your internal purposes in conjunction with the applicable Draftable Software.
- You must not install, access, configure or use any Embedded Software (including any APIs, tools, databases or other components of any Embedded Software) separately from the applicable Draftable Software, whether for production, technical support or any other purpose, or otherwise attempt to gain direct access to any Embedded Software component.
- Notwithstanding any other provision of this Agreement, You must not modify any Embedded Software including any source code provided with that Software.
- You must not "benchmark" or otherwise analyse performance information for individual Embedded Software elements.
- You acknowledge that third party licensors retain ownership of all Intellectual Property Rights in Embedded Software and that they are intended third party beneficiaries of this Agreement for this purpose and may enforce this Agreement directly against You. You will be responsible to the applicable third party licensor for any loss suffered by that third party as a result of Your breach of this Agreement. Draftable holds the benefit of the terms of this Agreement which apply to Embedded Software on trust for the applicable third party licensors to facilitate their direct enforcement (and for its own benefit).
- Embedded Software may include or be accompanied by third party technology that may be appropriate or necessary for use with some Embedded Software. Such technology may be specified in the Documentation or otherwise specified by Draftable, and is licensed to You only for use with the applicable Draftable Software and subject to any third party licence terms provided.
3. SOFTWARE SERVICES
3.1 Supply of Software Service
If you order a Software Service, Draftable will provide You the Software Service.
3.2 Subscription Period
Subject to earlier termination in accordance with clause 14.2, Draftable will provide You with access to the Software Service:
- for the period specified in the Order; or
- if no period is specified in the Order, on a month-to month basis from the date of the Order until you provide written notice of cancellation of the Software Service, (”Subscription Period”). If You provide notice of cancellation of a Software Service under clause 3.2(b), the Subscription Period will end on the last day of the relevant month for billing purposes.
3.3 Access to Software Service
- use all reasonable endeavours to prevent any other unauthorised access to or use of the Software Service;
- promptly notify Draftable if You become aware of any such unauthorised access or use of the Software Service.
3.4 Viruses and Unlawful Material
You must not access, store, distribute or transmit any Virus or Unlawful Material when using or accessing the Software Service
3.5 Other obligations
- provide Draftable with all necessary co-operation and access to such information as may be reasonably required by Draftable to provide the Software Service, including Your Data, security access information and configuration information;
- comply with all applicable laws and regulations;
- carry out all responsibilities set out in the Agreement (and any other responsibilities reasonably required in order for Draftable to be able to provide the Software Service) in a timely and efficient manner;
- ensure that Users access and use the Software Service in accordance with the Agreement;
- ensure that Your System and networks comply with relevant specifications provided by Draftable from time to time;
- procure and maintain the network connections and telecommunications links from Your Systems to Draftable’s data centres;
- ensure each User:
- keeps a secure password for their use of the Software Service;
- keeps their password confidential, and
- secure the performance by third parties of any obligations to You which affect Draftable’s ability to provide the Software Service.
Draftable may offer access to a Software Service on an evaluation basis for a limited period. Draftable does not offer any warranty, indemnity or support for any Software Service provided on an evaluation basis.
4. PRODUCTS, GENERALLY
This clause applies if You order a Product with an API.
- Draftable grants You a world-wide, non-exclusive, non-transferable and revocable licence to access, use and make calls to the API solely to enable Your Application to interface or interact with the relevant Product.
- You will retain all rights, title and interest, including Intellectual Property Rights, in and to Your Application.
4.2 Use of Products
You are responsible for the compliance of Users with this Agreement, and You are responsible for the acts and omissions of any Customers who are Users as if those acts or omissions were Yours.
4.3 Results and conclusions
Except as expressly provided by this Agreement, You assume all responsibility for results obtained from the access or use of any Product or any component thereof and for all conclusions drawn from that access or use.
5. YOUR DATA
You will own all rights, title and interest in Your Data and You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data
You grant Draftable a royalty-free, non-exclusive, irrevocable licence to use and reproduce Your Data for the sole purpose of providing the Software Service. If you use a No-Charge Product, you grant Draftable a royalty-free, non-exclusive, irrevocable licence to use and reproduce data inputted by You or Your Users in the course of using the No-Charge Product in order to improve and enhance Products and for other development purposes.
5.3 Loss or damage to Your Data
In the event of any loss of, or damage to, Your Data, Draftable will use reasonable commercial endeavours to restore Your Data from the latest back-up of Your Data maintained by Draftable. Draftable will not be responsible for any loss, damage or disclosure of Your Data caused by any third party or not otherwise within its reasonable control. You are responsible for backing up any data you input to a Software Service.
5.4 Personal Data
- Draftable will process Personal Data only in accordance with the terms of the Agreement and any lawful instructions reasonably given by You from time to time.
- Draftable will comply with the Australian Privacy Principles to the extent that they apply to Draftable’s provision of the Software Services, including by taking reasonable steps to ensure that Personal Data is protected from misuse, loss and interference, and from unauthorised use, disclosure or modification.
- Where relevant in relation to applicable privacy obligations, You acknowledge that You are the data controller and Draftable is the data processor of Personal Data for the purpose of privacy laws.
- You acknowledge that Personal Data may be transferred to or stored by a third party outside Your jurisdiction as part of the Software Service and You warrant that You have complied with all laws relating to privacy in respect of the disclosure or transmission of Personal Data to Draftable, including obtaining any required consents.
6. INTELLECTUAL PROPERTY AND AUDIT
- All of the Intellectual Property Rights in and to the Products, including any Updates, will remain owned by Draftable (or its licensors) and You will do all things reasonably requested by Draftable in order to perfect such ownership.
- You must not delete, obscure or modify any copyright or other proprietary rights notices or disclaimers displayed on or part of any Product.
From time to time, You may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Draftable, including sharing User Modifications or in the course of receiving Support Services (“Feedback”). Draftable may in connection with any Product freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Draftable’s right to independently use, develop, evaluate, or market Products, whether incorporating Feedback or otherwise.
Except to the extent that the following restrictions are void under applicable law or expressly permitted by this Agreement, You must not:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of any Product in any form or media or by any means;
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any Product;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit all or any part of any Product, or otherwise obtain, assist or make all or any part of any Product available to any third party except Authorised Users;
- use in any Product in any situation where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). The User is not licensed to use any Product in, or in conjunction with, High Risk Use. High Risk Use is strictly prohibited, and includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, and medical devices;
- modify or alter any licence protection mechanisms or try to circumvent them or the usage rules they are designed to enforce
- use any Product through automated means (except where the Product is supplied with an API); or
- use any API:
- to distribute, publish or allow access to the API from any location or source other than through Your Application;
- in any manner that could undermine the security of the content or the Draftable Systems;
- in any manner that, in Draftable’s reasonable opinion, amounts to excessive or abusive usage;
- in any way that impairs the functionality of the API or the Draftable Systems;
- to engage in any activity which breaches any law, or infringes the Intellectual Property Rights or other rights of Draftable or any third party;
- to transmit any viruses, worms, defects, trojan horses or any other software or code of a destructive or disruptive nature; or
- in any other way not permitted by this Agreement.
At Draftable’s request, You must:
- provide such information as Draftable may reasonably require for the purposes of assessing Your use of the Products, including information as to the number of Users who have access to the Software on Your Systems or any Software Service; or
- allow Draftable (or any third party nominated by Draftable) to audit Your use of the Products in order to determine whether You are complying with all of the requirements set out in this Agreement. You must provide Draftable (or Draftable’s nominee) with access to Your Systems, systems, facilities, personnel, information and records as reasonably required for the purposes of carrying out such an audit.
Draftable will bear the cost of any audit carried out under clause 6.4(a)(ii), except where the audit identifies a breach of this Agreement by You, in which case You pay all costs and expenses incurred by Draftable (or Draftable’s nominee) in carrying out the audit.
7. SUPPORT SERVICES
7.1 Support Services
- Subject to the terms of this Agreement, Draftable will use commercially reasonable efforts to provide You with technical support services in accordance with the terms specified on Your Order, if any, or otherwise in accordance Draftable’s standard practice.
- Draftable may, but is not obliged to, provide Support Services in respect of Embedded Software.
- Clause 7.1(a) does not apply to No-Charge Services.
8. SERVICE LEVELS
The following provisions apply if your Order of a Software Service specifies a Service Level Percentage.
The Software Service shall be available at the Service Level Percentage, measured monthly. This calculation will exclude downtime caused by
- scheduled maintenance; or
- maintenance requested by You; or
- outages of third party connections or utilities or other reasons beyond Draftable’s control.
8.2 Downtime Credits
- Your sole and exclusive remedy, and Draftable’s entire liability in connection with the Software Service availability shall be that for each period of downtime lasting more than one hour, Draftable will credit You 5% of the monthly Fees in connection with the Software Service for each period of 30 or more consecutive minutes of downtime (provided that no more than one such credit will accrue per day) (“Downtime Credit”).
- Downtime shall begin to accrue as soon as You provide notice to Draftable that downtime is taking place and continues until availability of the Software Service is restored.
- In order to receive a Downtime Credit, You must notify Draftable in writing within 24 hours from the time of downtime. Failure to provide such notice will forfeit the right to receive Downtime Credit.
- Downtime Credits may not be redeemed for cash and shall not be cumulative beyond a total of Downtime Credits for one (1) week of Fees in connection with Software Services in any one (1) calendar month. Draftable will only apply a Downtime Credit to the month in which the incident occurred.
- Draftable’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Draftable to provide adequate service levels under this Agreement.
9. FEES AND PAYMENT
- Draftable will issue invoices for the Fees in accordance with:
- Your Order in respect of Software; or
- Your Order, in respect of a Software Service. If Your use of the Software Service exceeds the amount set out in the Order, or otherwise requires the payment of additional Fees (per the terms of this Agreement), You shall be billed for such usage and You agree to pay the additional Fees in the manner set out herein.
- You must pay each properly issued invoice within 30 days of the date of the invoice.
9.2 Late payment
If You do not pay an amount when it is due and payable to Draftable under this Agreement, then You must pay interest on that amount from (and including) the day on which it falls due to (but excluding) the day on which it is paid in full, calculated at the Default Rate. This interest must be paid to Draftable on demand.
10.1 Consideration GST exclusive
Unless expressly stated otherwise in this Agreement, all amounts payable or consideration to be provided under this Agreement are exclusive of GST.
10.2 Payment of GST
If GST is payable on any supply made under this Agreement, for which the consideration is not expressly stated to include GST, the recipient agrees to pay to the supplier an additional amount equal to the GST payable at the same time that the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided. However:
- the recipient need not pay the additional amount until the supplier gives the recipient a tax invoice or an adjustment note;
- if an adjustment event arises in respect of the supply, the additional amount must be adjusted to reflect the adjustment event and the recipient or the supplier (as the case may be) must make any payments necessary to reflect the adjustment; and
- this clause 10.2 does not apply to the extent that the GST on the supply is payable by the recipient under Division 84 of the GST Act.
If a party is required under this Agreement to indemnify another party, or pay or reimburse costs of another party, that party agrees to pay the relevant amount less any input tax credits to which the other party (or to which the representative member for a GST group of which the other party is a member) is entitled.
10.4 Calculation of payments
If an amount payable under this Agreement is to be calculated by reference to:
- the price to be received for a taxable supply then, for the purposes of that calculation, the price is reduced to the extent that it includes any amount on account of GST; and
- the price to be paid or provided for an acquisition then, for the purposes of that calculation, the price is reduced to the extent that an input tax credit is available for the acquisition.
For the purposes of this clause 10:
- a term which has a defined meaning in the GST Act has the same meaning when used in this clause 10;
- “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
- each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies will be treated as though it is a separate supply.
11. WARRANTIES AND INDEMNITIES
11.1 Warranties by You
You represent and warrant that:
- You have full capacity and authority to enter into and to perform this Agreement; and
- once You accept this Agreement by placing an Order, downloading any Software, or accessing any Software Service, this Agreement will constitute legal, valid and binding obligations.
11.2 Warranties by Draftable
Draftable represents and warrants that:
- it has full capacity and authority to enter into and to perform this Agreement; and
- once accepted by Draftable on Your placing an Order, this Agreement will constitute legal, valid and binding obligations.
11.3 Your indemnity
You indemnify Draftable against any loss, damage, cost or expense suffered or incurred by Draftable resulting from a breach by You of clause 13 (Confidential Information) or clause 5.4 (Personal Data).
12. LIMITATIONS OF LIABILITY
12.1 Exclusion of implied terms
- All Products are provided to You on an “as is” and “as available” basis. To the maximum extent permitted by law, except as expressly set out in this Agreement, Draftable excludes all conditions, representations, warranties and statutory guarantees, whether express or implied and including any implied warranties of non-infringement or merchantability or fitness for purpose, in relation to the Products, the Support Services and the other subject matter of this Agreement.
- If a condition, representation, warranty or statutory guarantee cannot, by law, be excluded in accordance with clause (a), then to the extent permitted by law Draftable limits its liability in relation to that condition, representation, warranty or statutory guarantee to:
- in relation to goods, the repair or replacement of those goods or the cost of repair or replacement; and
- in relation to services, the resupply of those services or the cost of resupply.
12.2 Limitations of liability
- To the maximum extent permitted by law, the aggregate liability of Draftable to You in connection with this Agreement (whether in contract, tort (including negligence) or otherwise) is limited to the greater of A$20 and the amount of the Fees actually paid by You to Draftable in 12 months before the event giving rise to the liability, minus any amounts previously paid by You to Draftable in discharge of liability under or in connection with this Agreement.
- Subject to clause 12.2(c), neither party will be liable for any indirect, special or consequential damages (being damages other than damages that may fairly and reasonably be considered arising naturally or directly from the event by which they are caused) arising out of or in connection with this Agreement and includes damages for loss of profit, loss of opportunity, loss of anticipated savings and loss resulting from third party Claims.
- The exclusion in clause 12.2(b) will not apply to any liability of either party under an indemnity given in this Agreement.
12.3 Duty to mitigate
Each party will use all reasonable endeavours to mitigate loss and damage it suffers under or in connection with this Agreement.
12.4 Proportionate liability
The liability of a party (first party) to another party (second party) under this Agreement is reduced to the extent that the liability is caused or contributed to by an act or omission of the second party or any of the second party’s officers, employees, agents and contractors.
13.1 Disclosure of Confidential Information
The Recipient must not disclose the Discloser’s Confidential Information to any person except:
- Representatives, legal advisers, auditors and other consultants of the Recipient requiring it for the purposes of this Agreement;
- with the express prior consent of the Discloser;
- if the Recipient is required to do so by law or a stock exchange; or
- if the Recipient is required to do so in connection with legal proceedings relating to this Agreement or any other agreement between the parties.
13.2 Disclosure by Recipient
- Where the Recipient discloses the Discloser’s Confidential Information under clause 13.1(a) or 13.1(b) the Recipient must use all reasonable endeavours to ensure that persons receiving the Confidential Information from it do not disclose the information except in the circumstances permitted in clause 13.1 (Disclosure of Confidential Information).
- Where the Recipient discloses the Discloser’s Confidential Information under clause 13.1(c), the Recipient will notify the Discloser of the requirement to make the disclosure as soon as practicable and will provide any assistance reasonably requested by the Discloser in order to limit the nature and extent of the disclosure required.
13.3 Use of Confidential Information
The Recipient must not use the Discloser’s Confidential Information except for the purpose of exercising the Recipient’s rights or performing its obligations under this Agreement or any other agreement between the parties.
13.4 Return of Confidential Information
On the Discloser’s request, the Recipient must immediately deliver to the Discloser or destroy all documents or other materials containing or referring to the Confidential Information which are:
- in its possession, power or control; or
- in the possession, power or control of persons who have received Confidential Information from the Recipient under clause 13.1(a) or 13.1(b).
except to the extent that: 3. the Recipient requires the Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement or any other agreement between the parties; or 4. the Recipient is otherwise entitled to retain the Confidential Information.
14. TERM AND TERMINATION
- This Agreement commences when you place an Order and continues until the expiry of the Licence Term or the Subscription Term, whichever is later, unless terminated earlier in accordance with its terms.
- If you use No-Charge Product only, this Agreement applies for the duration of such use.
Either party may terminate this Agreement by notice to the other party if:
- the other party is subject to an Insolvency Event; or
- the other party:
- commits a material breach of this Agreement; and
- fails to remedy that breach within thirty (30) days of being requested to do so.
For the avoidance of doubt, any use of the Products by You other than in accordance with this Agreement or any failure by You to pay the Fees to Draftable when they are due and payable will constitute a material breach of this Agreement by You.
14.3 Effect of termination
On termination of this Agreement for any reason:
- all outstanding Fees payable by You to Draftable will immediately become due and payable;
- all rights and licences granted under this Agreement will cease and You must stop using the Products; and
- You must, at Draftable’s option, either destroy, permanently delete or return to Draftable all copies of any Software then in Your possession or control.
The following clauses will survive the termination of this Agreement for any reason: 4.2, 6.4, 9 to 13, 14.3, 16, 20 and 21.
15. DISPUTE RESOLUTION
15.1 Dispute notice
A party claiming that a dispute exists in connection with the Agreement must notify the other party in writing of the details of the dispute.
15.2 Good faith negotiation
In the event of a dispute the parties will work together in good faith to attempt to resolve the matter. If the parties are unable to resolve a dispute within 14 days of receipt of the dispute notice, then either party may suggest or pursue other forms of dispute resolution.
Neither party may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute under this Agreement unless the dispute resolution procedures set out in this clause 15 have been followed.
16. FORCE MAJEURE
No party will be liable for any delay or failure in performance (other than payment obligations) due to circumstances beyond its reasonable control including acts of God, disease, pandemic, war, terrorism or the public enemy, riot, civil commotion or sabotage, expropriation, condemnation of facilities, national or state emergency or other governmental action, strikes, lockouts, work stoppages or other such labour difficulties, floods, droughts or other severe weather, fires, explosions or other catastrophes or accidents causing damage to or destruction, in whole or in part, of the equipment or property necessary to provide the Software Services or the Software.
Any notice required to be given under the Agreement must be in writing and be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Service Order, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in the Order
A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email will be deemed to have been received at the time of transmission (as shown by the time sent by the sender) unless the sender receives a sent email failure message.
- You may not assign or otherwise deal with any of Your rights or obligations under this Agreement without Draftable’s prior consent.
- Draftable may novate or assign any of its rights or obligations under this Agreement to a Related Body Corporate by notice to Your and You must immediately execute any documents necessary to give effect to any such novation or assignment.
19.1 UN Convention on the Sale of Goods
The parties expressly agree that the United National Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
19.2 Export restrictions
The Products may be subject to United States export laws and regulations. Each party must comply with any such laws and regulations in respect of the Licensed Materials.
19.3 Publicity Rights
Draftable may identify You as a Draftable customer in our promotional materials. You may request that Draftable stops doing so by submitting an email to email@example.com at any time. Please note that it may take us up to 30 days to process Your request.
19.4 Withholding Taxes
Any payment of Fees under this Agreement must be made in full without any deduction or withholding (whether in respect of set-off, counter-claim, duties, Withholding Taxes, charges or otherwise howsoever) unless such deduction or withholding is required by any applicable tax law, in which event You must:
- ensure that the deduction or withholding does not exceed the minimum amount legally required;
- pay to Draftable such additional amount as necessary to ensure that the net amount received by Draftable is equal to the amount which would have been received by Draftable had no such deduction or withholding been made;
- pay to the relevant Government Agency within the period for payment permitted by the applicable tax law the full amount of the deduction or withholding (including the full amount of any deduction or withholding on any additional amount paid under this clause); and
- upon a written request, from Draftable, provide Draftable with:
- an official receipt (if available) of the amount deducted or withheld and paid to the Government Agency; or
- if such receipts are not issued by the relevant Government Agency, evidence of the relevant deduction or withholding, which may be satisfied by You providing Draftable with written confirmation as to the amount deducted or withheld, the relevant Government Agency to which that amount was paid and the date on which the amount withheld or deducted was paid. For the purposes of this clause, “Withholding Taxes” means all kinds of taxes, levies, imposts, charges and duties (excluding stamp and transaction duties and GST) imposed, levied or assessed by any Government Agency together with any related interest, penalties, fines and expenses in connection with them.
20.1 Remedies cumulative
The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.
The indemnities in this Agreement are continuing obligations, independent from the other obligations of the parties under this Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
20.3 No partnerships
Nothing contained or implied in this Agreement constitutes a party the partner, agent, or legal representative of another party for any purpose or creates any partnership, agency or trust, and no party has any authority to bind another party in any way.
20.4 Variation and waiver
A provision of this Agreement or a right created under it, may not be varied or waived except in writing, signed by the party or parties to be bound.
20.5 Entire agreement
- This Agreement constitutes the entire Agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
- Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty not expressly set out in this Agreement.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.
20.7 Counterparts and Electronic Signature
This Agreement may be executed in counterpart, each of which will be deemed an original copy and both of which will constitute one and the same agreement. A party may execute and deliver a counterpart by facsimile or other electronic signature (including portable document format) and the receiving party may rely on the receipt of such document so executed and delivered as if the original had been received.
21. GOVERNING LAW
21.1 Governing Law
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed by the laws of the State of Victoria, Australia.
The parties irrevocably agree that the courts of State of Victoria have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).