1.  GRANT OF LICENCE/ RIGHT TO ACCESS

The Service Provider is the sole and exclusive owner of the Software and upon execution of a Statement of Work and/or Pricing Schedule by a Client, the Client agrees to be bound by these terms and conditions, the Service Provider’s general Terms of Use available at https://tradewindow.io/legals/terms-of-use and the Statement of Work and/or Pricing Schedule (together the “Agreement”) subject to which the Service Provider grants and the Client hereby accepts in the case of Licenced Services, a non-exclusive, non-transferable, and non-sublicensable licence to use the Software and Documentation, on the System, at the Location, and on the Server (Location Server) as defined by the Client in the Statement of Work and/or Pricing Schedule; or in the case of Cloud-Based Services, a limited, revocable, non-exclusive and non-transferable right to access and use the Software and Documentation (for any lawful purpose, subject to and in accordance with the terms and conditions set out in this Agreement (Access Right). The Service Provider and Client shall be individually referred to herein as a “Party” and collectively as the “Parties”.

 

2.  ACCESS RIGHT AND RIGHT TO RESTRICT

(a)   The Client and its Permitted Users agree, warrant and accept that the right to use the Services is restrictive and that the Client and Permitted Users must not:

(i)       use the Software for any purpose or in any manner other than as set out in his Agreement;

(ii)      use the Software in any way that could damage the reputation of the Service Provider, or the goodwill or other rights associated with the Software;

(iii)     upload any Client Data or any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable;

(iv)     license, sell, rent, lease, lend, transfer, outsource, sublicense or otherwise provide access to the Software or Documentation to a third party or utilise the Software or Documentation for the benefit of a third party or permit any third party to use the Software;

(v)      reproduce, make error corrections to or otherwise modify, copy or adapt the Software or the Documentation or create any derivative works based upon the Software or the Documentation;

(vi)     de-compile, reproduce, decipher, mirror, disassemble or otherwise reverse engineer the Software or permit any third party to do so; or

(vii)    modify or remove any copyright or proprietary notices on the Software or the Documentation or otherwise attempt to access, imitate, derive or discover the source code thereof or permit any third party to do so.

(c)  The Client must procure each Permitted User’s compliance with clause 2(a) and any other reasonable condition notified by the Service Provider to the Client. A breach of any term of the Agreement by the Client’s Permitted Users is deemed to be a breach of the Agreement by the Client.

(d)   The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Software and Documentation, including to use, store and input data into, and process and distribute data.

(e)   The Access Right as granted in terms of this Agreement entitles the Client to:

(i)       in the case of Licenced Services, receive a copy of the Software together with the necessary documentation to install and use the same, or in the case of Cloud-Based Services to receive a right to access and use the Software;

(ii)      in the case of Licenced Services to use the Software on the nominated Server and at the Location as set out in the Statement of Work and/or Pricing Schedule. For the avoidance of any doubt, the Service Provider may (at its sole discretion) charge the Client a separate fee for each Server upon which the Client wants to use the Software;

(iii)      use the Software solely in accordance with this Agreement;

(iv)     in the case of Licenced Services, to receive during the Warranty Support Period the Service Provider’s reports of errors and fixes of the Software from time to time as they become available;

(v)      in the case of Licenced Services, to receive during the Warranty Support Period updated versions of the Software as soon as reasonably practicable after they become available and in the case of Cloud-Based Services to have access to updated versions of the Software; and

(vi)     in the case of Licenced Services, to receive during the Warranty Support Period corrections to any standard program which does not perform according to the Program Specifications (excluding any program specifically modified for the Client).

(vii)     In the event that the specified System is inoperable or is under repair, the Client shall report the same to the Service Provider for permission to use the Software on another Server, which agreement shall be in writing.

(f)   For the purposes of this Agreement, updated versions of the Software shall mean enhancements or permanent modifications to the Software.

(g)   For the purpose of this Agreement, “Use” shall mean:

(i)       in the case of Licenced Services, the utilisation of the Software by copying or transmitting the same into the System of the Client for the processing of the instructions or statements contained in such Software and in the case of Cloud-Based Services the right to access and use the Software for the processing of the instructions or statements contained in such Software; and

(ii)      in the case of Licenced Services, making a reasonable number of back-up copies solely for internal business support procedures of the Client.

(h)   The Client agrees that the right to use the Software is restrictive and does not entitle the Client to:

(i)       use the Software for the use and benefit of any Third Party to prepare software programs for the sale, lease, rent, lend, transfer or any other use by any Third Party;

(ii)      without a prior written agreement between the Parties, either directly or indirectly under any circumstances use the Software for the purposes of (or in connection with) a business providing free services to customers, which in this Agreement shall mean and include collection, storage, processing or distribution of data or information of a Third Party which includes the use of the Software;

(iii)      use the Software for any purpose or in any manner other than as set out in this Agreement

(iv)     use the Software in any way that could damage the reputation of the Service Provider or the goodwill or other rights associated with the Software;

(v)      permit any person to link to any page containing any part of the Software (including via a hyperlink or RSS feed) without the Service Provider’s prior written consent; or

(vi)     allow any non-Users to use any User IDs, code(s), password(s), or other mechanisms issued to, or selected by, the Client for access to the Software.

(i)    The Client hereby accepts that any restraint on the use of the Software constitutes the creation or use of work derived from the copyright in respect of the Software for which a further agreement from the Service Provider is required by any Third Party.

(k)   The Client accepts that any breach of this Clause 2 shall entitle the Service Provider to immediately terminate this Agreement without prejudice to its rights in respect of prior or continuing breaches of the copyright or the misuse of the confidential information of the Service Provider and such termination shall not relieve the Client of its obligation to pay the Fees accrued and due for the entire term of the Agreement

(l)    Without limiting any other right or remedy available to the Service Provider, the Service Provider may restrict or suspend the Client’s access and/or delete, edit or remove any relevant data if the Service Provider considers that the Client (including any of the Permitted Users) has:

(i)       undermined, or attempted to undermine the security or integrity of the Software and or Documentation; or

(ii)      used, or attempted to use the Service for improper purposes; or in a manner, other than for normal operational purposes or in violation of clause 2; or

(iii)      transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

(iv)     otherwise materially breached the Agreement and the breach has not been remedied in accordance with clause 13.

(m) The Service Provider may suspend access to the Hosting Services, without liability, where continued operation poses a significant security risk, including but not limited to cyberattacks, unauthorised access, or breaches of Client obligations, in accordance with the SLA.

 

3.  SERVICES

3.1  General: The Service Provider must use reasonable efforts to provide the Service:

(a)   in accordance with the terms of this Agreement and Relevant Law; and

(b)   exercising reasonable care and skill; and

(c)   using suitably skilled, experienced and qualified personnel.

3.2  Non-exclusive: The Service Provider’s provision of the Service to the Client is non-exclusive.  Nothing in the Agreement prevents the Service Provider from providing the Service to any other person or Third Party. There is no obligation on the Client to obtain the services of the type provided under this Agreement exclusively from the Service Provider.

3.3  Availability:

(a)   In respect of Cloud-Based Services, Service Availability shall be determined in accordance with the  Service Level Agreement (SLA) available at: https://tradewindow.io/legals/sla-prodoc-cube including applicable exclusions and third-party hosting parameters. The Client acknowledges and agrees that:

(i)        The SLA governs availability, uptime tracking, incident response times, and remedies including Service Credits (if applicable);

(ii)        The SLA of any third-party Cloud Hosting provider (e.g., Microsoft Azure) shall take precedence over the Service Provider’s SLA in relation to infrastructure-level outages or hosting-related failures; and

(iii)      the Client’s sole remedy for third-party Cloud Hosting outages shall be as provided by the applicable third-party Cloud Hosting provider and it’s SLA

For the avoidance of doubt, the Service Provider makes no independent uptime guarantees beyond those outlined in the applicable SLA and/or third-party Hosting Provider’s agreements..

(b)  The Client will indemnify the Service Provider against any downtime or unavailability of the Service caused by:

(i) the Client’s actions or omissions; or

(ii) a Third Party’s acting on behalf of the Client whose negligence or actions contribute to service unavailability.

(c)  The Services may be unavailable in the event of force majeure. Additionally, where the Service interoperates with Third-Party features, the Service Provider makes no warranty or representation regarding the availability of those features.  If a Third-Party feature provider discontinues or modifies a feature, the Service Provider reserves the right to cease providing that feature. To avoid doubt, if the Service Provider ceases availability of a Third-Party feature, the Client is not entitled to any refund, discount, or any other compensation.

(d) Where the Services rely upon, connect to, or interoperate with Third Party Providers, the Client acknowledges that such integrations may result in third-party fees, usage-based charges, or other external costs incurred by the Service Provider. The Service Provider reserves the right to on-charge such third-party costs to the Client, together with any reasonable administration, handling, or processing fee, in accordance with clause 6.6A. For the avoidance of doubt, changes to third-party pricing, service availability, or technical specifications shall not constitute a breach of this Agreement, and the Client remains liable for any applicable fees associated with such integrations.

3.4  Cloud Based Services (if applicable):

(a)  The Service Provider offers both on-premise and Cloud-Based Services. Where the Client subscribes to Cloud-Based Services, the Client acknowledges that:

(i)   The Software is provided as a customised SaaS instance, which is Cloud Hosted on infrastructure provided by a Third-Party Cloud Service Provider.

(ii)  Cloud Hosting is provided by third-party Cloud Hosting providers outside the control of the Service Provider. The Service Provider reserves the right to change hosting providers, provided that the Client will be informed when such a change occurs. Such changes shall not be deemed a material breach of this Agreement.

(iii)  The Client is solely responsible for maintaining up-to-date backups of critical data, ensuring data security within its own infrastructure, and complying with the Hosting Provider’s technical requirements. The Service Provider shall not be liable for any data loss, corruption, or service disruption caused by hosting provider outages or Client misconfiguration

(b)  Exclusions from Liability:

(i)   The Service Provider does not control, manage, or operate the Cloud Hosting environment.

(ii)  The Service Provider shall not be responsible for any downtime, errors, or interruptions caused by third-party Cloud Hosting providers, including but not limited to Microsoft Azure and AWS. The Client acknowledges that its sole remedy for such service disruptions is governed by the SLA of the applicable third-party provider, as outlined in Clause 12(a)(v).

(iii)  The Client’s sole remedy for service disruptions in Cloud Hosting is governed by the SLA of the Third-Party Cloud Service Provider, as referenced in Clause 3.3.

3.5  Issue of Software:

(a)   Licenced Services:

(i)  The Service Provider shall upon execution of each Statement of Work and/or Pricing Schedule and receipt of payment of the Fees as set out in that Statement of Work and/or Pricing Schedule, issue to the Client the Services to which that Statement of Work and/or Pricing Schedule relates for Use on the Client’s System in accordance with the terms set out in this Agreement and the Statement of Work and/or Pricing Schedule, together with the necessary Documentation (whether in printed or machine-readable form) to install and Use by the Client.

(ii)  The Client must ensure that the System on which the Software is to be installed is in good, up to date working order and operating condition when the Service Provider commences installation of the Software.

(iii)  The Client accepts and acknowledges that the Software, any updated versions and any reports of errors and fixes of the Software issued to the Client pursuant to this Agreement have been developed for use in conjunction with the latest release of the System software and as a result, if the Client’s System software is not the latest release, difficulties may be experienced in running the Software. The Client agrees that the Service Provider shall not be liable in any way in respect of such difficulties or consequences.

(b)   Cloud-Based Services:

(i)  The Service Provider shall, upon execution of each Statement of Work and/or Pricing Schedule and receipt of payment of the Fees as set out in that Statement of Work and/or Pricing Schedule, issue to the Client an access right to the Services to which that Statement of Work and/or Pricing Schedule relates for Use by the Client in accordance with the terms set out in this Agreement, the Service Level Agreement and the Statement of Work and/or Pricing Schedule.

(ii)  Cloud Hosting, which forms part of the Hosting Services, is provided by third-party Cloud Hosting providers. The Service Provider reserves the right to change Hosting Service providers, provided that the Client is informed of any such change in advance, in accordance with the SLA.

3.6  User Acceptance Testing:

(a)   This clause 3.6 is not applicable to clients whose Software has been installed for longer than six months.

(b)   The Client may undertake User Acceptance Testing of the Software upon notification by the Service Provider on the terms set in this clause 3.6 or otherwise agreed to in a Statement of Work and/or Pricing Schedule. Notification by the Service Provider will take place when the Service Provider sends a notification via email to the Client that the Software has been set up by the Service Provider for the Client to commence User Acceptance Testing (Initial Notification).

(c)   Unless specified to the contrary in the applicable Statement of Work and/or Pricing Schedule, the Client will have five (5) Business Days from the date of Initial Notification (Initial Testing Period) to complete their initial testing.

(d)   During the Initial Testing Period, the Client will provide the Service Provider with notice of any defect in the Software as identified by the Client and agreed upon between the Parties during User Acceptance Testing (Reportable Errors), and the Service Provider will, for no charge to the Client, rectify such Reportable Errors.

(e)   Following rectification of the Reportable Errors (if any) by the Service Provider, the Service Provider will notify the Client that the Software has been set up by the Service Provider for the Client to commence the second round of User Acceptance Testing (Second Notification).

(f)   Unless specified to the contrary in the applicable Statement of Work and/or Pricing Schedule, the Client will undertake a second and final round of User Acceptance Testing by the Client, which must be completed within five (5) Business Days of the date of the Second Notification (Second Testing Period).

(g)   During the Second Testing Period, the Client will provide the Service Provider with notice of any additional Reportable Errors identified by the Client as a result of the second round of User Acceptance Testing.

(h)   A failure to report a Reportable Error within the time frames set out in this clause means that the Reportable Error will not be addressed by the Service Provider during the User Acceptance Testing period.

(i)   For the avoidance of doubt, the Service Provider is not under any obligation to rectify any error or defect in the Software which is not a Reportable Error.

(j)    Completion of User Acceptance Testing: User Acceptance Testing will be deemed to have been passed and completed:

(i)    at the conclusion of the First or Second Testing Period (as applicable), if the Client’s User Acceptance Testing finds that there are no Reportable Errors in the Software which the Service Provider is required to rectify under clause 3.6; or

(ii)    if there are Reportable Errors notified by the Client under clause 3.6 and the Service Provider accepts that the errors are Reportable Errors, when, at the sole determination of the Service Provider, all Reportable Errors are rectified by the Service Provider and completion of User Acceptance Testing have been communicated to the Client by the Service Provider.

(k)   The Go-Live Date automatically commences on the completion of User Acceptance Testing as set out in clause 3.6(j). For the avoidance of doubt, the Go-Live Date marks the point at which Service Availability obligations commence, as per the SLA.

(l)    The Client acknowledges that any errors identified after the completion of User Acceptance Testing shall be addressed through the Support and Maintenance provisions and shall not affect the Go-Live Date, nor give rise to any refund, credit, or right to terminate the Agreement.

3.7   Additional Related Services: The Service Provider may, from time to time, make available additional Related Services to supplement the Service. At the request of the Client and subject to the Client paying the applicable Fees, the Service Provider may agree to provide to the Client any additional Related Service on the terms of the Agreement.

 

4.  CLIENT OBLIGATIONS

4.1  General Use:  The Client and its personnel must:

Use the Service in accordance with the Agreement solely for the internal business purposes of the Client; and lawful purposes and not resell or make available the Service to any Third Party or otherwise commercially exploit the Service.

4.2  Access conditions: When accessing the Service, the Client and its personnel must:

(a)   not impersonate another person or misrepresent authorisation to act on behalf of others or the Service Provider;

(b)   correctly identify the sender of all electronic transmissions;

(c)   not attempt to undermine the security or integrity of the Underlying Systems;

(d)   not use, or misuse the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;

(e)   not attempt to view, access or copy any material or data other than:

(i)       authorised; and

(ii)      to the extent necessary for the Client and its personnel to use the Service in accordance with this Agreement;

(f)   neither use the Service in a manner nor transmit, input or store any Data, that breaches any Third Party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and

(g)   comply with any Terms of Use, as updated from time to time by the Service Provider.

4.3 Personnel: 

(a)   Without limiting clause 4.2, no individual other than a Permitted User may access or use the Service.

(b)   The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide the Service Provider with the Permitted User’s name and other information that the Service Provider reasonably requires in relation to the Permitted User.

(c)   The Client must procure each Permitted User’s compliance with clauses 2, 3, 4.1 and 4.2 and any other reasonable condition notified by the Service Provider to the Client.

(d)   A breach of any term of the Agreement by the Client’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Agreement by the Client.

4.4  Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through the Service.

 

5.  DATA AND PRIVACY

5.1  Service Provider Access to Data:  The Client acknowledges that:

(a)   the Service Provider may require access to the Data to exercise its rights and perform its obligations under the Agreement; and to the extent that this is necessary, the Service Provider may authorise a member or members of its personnel to access the Data for this purpose.

(b)   The Client shall arrange all consents and approvals that are necessary for the Service Provider to access the Data as described in clause 5.1(a).

(c)   For the purpose of this Agreement, the Parties’ rights, and obligations with respect to the Data processing activities shall be subject to and governed by the Service Provider’s Data Processing Agreement (DPA) which forms part of and is incorporated into these terms and conditions by reference available at: https://tradewindow.io/legals/dpa-prodoc-cube

(d)   The Service Provider may utilize third-party service providers (Third-Party Providers) to facilitate and/or improve the provision of the Service to the Client. These Third-Party Providers may include, but are not limited to, software providers, data processors, and other service vendors. The Client acknowledges and agrees that by using the Service, it consents to the Service Provider’s engagement of Third-Party Providers to assist in delivering and enhancing the Service. To enable the effective provision of the Service, the Client agrees that the Service Provider may share necessary Data, including but not limited to personal information, usage Data, and transaction information, with Third-Party Providers. The Client understands and accepts that the Service Provider will take reasonable steps to ensure the confidentiality and security of any shared Data and conduct due diligence on any new Third Party Provider it engages to review its management controls however, the Service Provider shall not be held liable for any unauthorized access, use, disclosure, or breach of Data by Third-Party Providers.

(e)   The Client acknowledges that the Service Provider’s responsibility is limited to facilitating the connection between the Client and Third-Party Providers to enable the Service and the Service Provider shall not be held liable for any act, omission, negligence, misconduct, errors, or liability arising from the services or actions of Third-Party Providers. The Client agrees to indemnify and hold the Service Provider harmless from any claims, losses, damages, liabilities, costs, or expenses (including reasonable attorney’s fees) arising out of or related to the interactions with Third-Party Providers.

5.2  Analytical Data:  The Client acknowledges and agrees that:

(a)   the Service Provider may:

(i)       use data and information about the Client’s and the Client’s end-users’ use of the Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); and

(ii)      use Analytical Data for the Service Provider’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights, and not for any marketing purposes,

(b)   the Service Provider’s rights under clause 5.2(a) above will survive termination or expiry of the Agreement; and

(c)   title to, and all Intellectual Property Rights in the Analytical Data remains the property of the Service Provider.

5.3  Agent: The Client acknowledges and agrees that, to the extent Data contains Personal Information, in collecting, holding and processing that information through the Service, the Service Provider is acting as an agent of the Client for the purposes of Relevant Law. The Client must obtain all necessary consents from the relevant individual to enable the Service Provider to collect, use, hold and process that Personal Information in accordance with the Agreement and Relevant Law.

5.4  Backups of Data: In respect of Cloud-Based Services, the Service Provider will take standard industry measures to back up all Data stored using the Services and to make that Data available in a common electronic format upon the Client making such a request. In respect of Licenced Services, the Client agrees to keep a separate backup copy of all Data. The Client is solely responsible for maintaining independent backups of its Data. The Service Provider does not guarantee the recovery of lost Data except as provided under the SLA and in accordance with Clause 12(a)(iii)-(iv)

5.5  International storage of Data: The Service Provider may store elect Data relating to the Services (excluding Personal Information) internationally, using Decentralised Systems.

5.6  Data Breaches:

(a)   Any Data breaches and security incidents will be managed in compliance with Relevant Law, this Agreement and the Service Provider’s Privacy Policies available at https://tradewindow.io/legals/privacy-policy.

(b)  In the case of a breach or an incident, the Service Provider will notify the Client without undue delay, but no later than 48 hours, upon becoming aware of a breach that may be affecting the Client’s Data in accordance with the provisions of the Service Provider’s Privacy Breach Policy. Such notice shall contain:

(i)       A description of the nature of the incident, including where possible the categories and approximate number of records concerned;

(ii)      The name and contact details of the Service Provider’s Privacy Officer or another contact point where more information can be obtained;

(iii)      Any action taken by the Service Provider to reduce the risk of harm following the breach;

(iv)     Any proposed action to reduce the risk of harm; and

(v)      Details of security measures protecting the Client’s Data.

(c)   The Service Provider shall co-operate with Client and take such reasonable steps as are requested by the Client to assist in the investigation, mitigation and remediation of each such security or privacy breach.

(d)   The Service Provider:

(i)     agrees that the Client will be solely responsible for determining whether a data breach would be likely to result in serious harm to any individuals to whom any Personal Information contained in the Client’s Data the subject of the actual or suspected data breach relates;

(ii)    must cooperate with the Client to assist the Client in making the determination referred to in clause 5.6(d)(i);

(iii)    must not disclose to any Third Party the existence or circumstances surrounding any data breach, without the Client’s prior written approval (not to be unreasonably withheld or delayed).

5.7  Confidentiality and Security of the Data

(a)   The Service Provider shall:

(i)       treat all Client’s Data as confidential;

(ii)      implement and maintain technical and organisational measures to protect Client’s Data from data breaches in accordance with industry best practice, including as outlined in international standards including but not limited to, ISO 27001.

(iii)      inform all its employees, agents, and Third Parties with access to the Client’s Data in accordance with paragraph (iv) below of the confidential nature of the Client’s Data;

(iv)     ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under a statutory obligation of confidentiality;

(v)      restrict access any Client’s Data to personnel who need to access the Data to fulfil the Service Provider’s obligations under this Agreement and in any event not disclose the Data other than to the Service Provider’s employees without the Client’s prior written consent;

(vi)     if requested by the Client, provide up to date lists of persons to whom the Client’s Data has been disclosed;

(vii)     ensure that all Client’s Data is segregated (either virtually or physically) from the Service Provider’s own data or that of the Service Provider’s other customers;

(viii)    ensure that its physical and IT security systems only permit properly authorised personnel to access the Client’s Data;

(x)      comply with all of the Client’s security and office regulations as far as it relates to the provision of the Services as set in this Agreement, including when on the Client Premises, accessing any of the Client’s computer systems or accessing the Data.  The Client will make a copy of the regulations available to the Service Provider;

(xi)     not sell, licence or otherwise deal with or commercially exploit any Data;

(xii)     not alter the Data except as required to perform its obligations under this Agreement.

5.8  Access or Correction Requests: The Service Provider will provide reasonable timely assistance to the Client to respond to any access or correction requests, and respond to such requests only in accordance with the Client’s reasonable directions.

 

6.  FEES

6.1   Payment: The Client covenants to pay to the Service Provider all the Fees as set out in each Statement of Work and/or Pricing Schedule and invoiced to the Client for Services properly supplied in accordance with this Agreement. Subscription Fees are payable from the Start Date, as set out in the Pricing Schedule. The Client must pay the Installation Fee in full before the Start Date, failing which the installation will not commence.

6.2  Installation Fee / Initial Set-Up Fee:

(a)   Where the Statement of Work and/or Pricing Schedule provides that an Installation Fee is payable in relation to any specific Service, that Installation Fee will be paid in accordance with the payment terms as set in the Statement of Work and/ or Pricing Schedule.

(b)   In respect of Licenced Services for on-premises installation, a separate Installation Fee may (at the Service Provider’s sole discretion) be payable for each Server upon which the Client wishes to use the Software.

6.3  Maintenance Fee: Subject to clause 7.1(b), where the Statement of Work and/or Pricing Schedule provides that a Maintenance Fee is payable in relation to any specific Service, that Maintenance Fee is due and payable in monthly instalments within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider.

6.4  Transaction Fee: Transaction Fees payable in respect of any Service, at the rate as specified in the relevant Statement of Work and/or Pricing Schedule, are payable within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider.

6.5  Subscription Fees: Where the Statement of Work and/or Pricing Schedule provides that a Subscription Fee is payable in relation to any specific Service that Subscription Fee, at the rate as specified in the relevant Statement of Work and/or Pricing Schedule, is payable within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider.

6.6  Related Services Fee: Where the Statement of Work and/or Pricing Schedule provides that a Related Service Fee is payable in relation to any specific Service, that Related Service Fee at the rate as specified in the relevant Statement of Work and/or Pricing Schedule, is payable within 20 days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider.

6.6A Third-Party On-Charge Fees and Administration Costs: The Client acknowledges and agrees that the Service may involve integrations with, or reliance on, Third Party Providers, including but not limited to cloud hosting platforms, authentication services, data exchange systems, or compliance-related services. Where the Service Provider incurs direct or indirect costs, fees, charges, levies or surcharges from Third Party Providers in connection with the delivery or operation of the Services for the benefit of the Client, the Service Provider may, at its sole discretion:
(i)  on-charge such third-party costs to the Client; and
(ii) apply a reasonable administration, handling, or processing fee in addition to the actual third-party cost to reflect internal time, resource, and risk associated with the use of such providers.
Any such on-charges will be itemised and invoiced in accordance with this Agreement and shall be payable within the timeframe set out in clause 6.7. This clause shall apply notwithstanding any fixed Fees, discounts, or estimates set out in a Statement of Work or Pricing Schedule.

6.7  Invoicing and payment:

(a)   The Service Provider will provide the Client with valid GST tax invoices on the dates set out in the Statement of Work and/or Pricing Schedule, or if there are none, monthly in arrears for the Fees due in the previous month.

(b)   All Fees and charges are inclusive of all taxes, (including income tax) duties or such other additional sums including, (but not limited to) Customs, Import Duty or Sales Tax, but excluding GST.

(c)   The Client must pay the Fees:

(i)       within twenty (20) days of the end of the calendar month in which the invoice is provided to the Client by the Service Provider; and

(ii)      electronically in cleared funds without any set-off, deduction, or withholding, including during any dispute regarding the Service, unless such dispute concerns an overcharge or billing error, in which case the Client’s remedies are strictly limited to Clause 12(b).

6.8  Overdue amounts: The Service Provider may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Service Provider’s primary trading bank as at the due date (or, if the Service Provider’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus two percent (2%) per annum.

 6.9  Increases:

(a)   The Service Provider may increase the Fees at its sole discretion, provided that the Client is given at least thirty (30) days’ written notice of any such increase. Fee increases shall be deemed reasonable where they are:

(i)         In line with inflation or rising operational costs, including but not limited to increased labour, hosting, or compliance costs;

(ii)       Based on increased third-party supplier or hosting provider costs (e.g., Microsoft Azure); or

(iii)      Required to maintain the continued operation, security, or development of the Services.

(b)    The Service Provider may adjust the Fees no more than once per six (6) months, unless a third-party supplier or regulatory cost increase necessitates an additional adjustment.

(c)    Client Termination Rights: If the Client does not wish to pay the increased Fees, it may terminate the Agreement by providing no less than ten (10) days’ written notice before the effective date of the increase. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

(d)    Fees updated under this clause shall be deemed to replace those listed in the Statement of Work and/or Pricing Schedule and exclude any discounted Fees.

6.10 Gross-Up for Withholding Taxes

(a)   All payments to the Service Provider under this Agreement shall be made free and clear of any deduction or withholding for taxes, duties, or levies imposed by any governmental authority, including withholding tax (WHT).

(b)    If any such deduction or withholding is required by law, the Client shall:

(i)    gross up the payment amount so that the Service Provider receives the full amount it would have received had no withholding been applied; and

(ii)   promptly provide the Service Provider with a copy of the WHT certificate or other proof of payment issued by the tax authority.

 

7.  MAINTENANCE

7.1  Support and Maintenance

(a)   Where, pursuant to a Statement of Work and/or Pricing Schedule, the Service Provider has agreed to provide Software maintenance and support services in respect of certain Software (Maintenance Services), those Maintenance Services are provided by the Service Provider between 08:30 and 17:30 Monday to Friday (excluding public holidays) as per the relevant jurisdiction of principal place of business of the Service Provider and these Maintenance Services shall include:

(i)       access to Software updates as they are released, with new features and fixes;

(ii)      reports on errors and fixes; as notified by the Client;

(iii)      corrections to any standard program which does not perform, excluding programs modified for the Client by parties other than employees of the Service Provider;

(iv)     up to 30 minutes of free investigation on Software function failure. The Service Provider will continue to assist the Client regardless of the cause of the failure; however, a time charge will apply to the Client if the fault was not caused by the Service Provider.

(v)      fixing problems with documentation created by the Service Provider for the Client, which excludes any changes in the way the Client conducts its business or if any action of the Client causes previously working documentation to exhibit issues;

(vi)     assistance with questions on how the Software works, or how to operate the Software, including showing the Client’s IT team how to run and install the Software and Software updates.

(b)   Maintenance Services will be provided free of charge by the Service Provider to the Client during the Warranty Support Period.

(c)   Maintenance Services provided to the Client after the Warranty Support Period is subject to the charges/costs as set out in the relevant Maintenance and Support Agreement available at: https://tradewindow.io/legals/terms-of-use

(d)   Where possible, the Service Provider will assist the Client via remote connection, provided that the Client will be charged after the initial installation for the time of establishing a connection where such establishment exceeds 5 minutes.

7.2  Maintenance Exclusions:

(a)   Maintenance Services do not include:

(i)       chargeable professional services such as education, any training or re-training; installation or upgrade assistance, systems analysis and programming, unless specified in any covering documentation;

(ii)      maintenance required as a result of loss or damage caused directly or indirectly by the Client’s error or omission;

(iii)      travelling time or associated expenses, unless explicitly agreed to in writing between the Parties;

(iv)     re-installation of the Software after any malfunction as a result of any action by the Client or any Third Party acting on behalf of the Client;

(v)      writing or modifying documents or specialised reports for the Client;

(vi)     writing or modifying specialised SQL queries for the Client;

(vii)     managing a Client’s email server or tracking messages through their email system; and

(viii)    any other maintenance requests not covered under clause 7.1.

7.3  Separate Maintenance and Support Charges: No-obligation after-hours support is available on request and per agreement by the Service provider, subject to the rates of the Service Provider. Unless otherwise agreed in writing between the Parties, all of the above exclusions and/or any request for Maintenance Services that fall outside of the provisions of clause 7.1 will be separately charged for by the Service Provider as set out in the terms and conditions of the relevant Maintenance and Support Agreement related to the jurisdiction of the Service Provider available at https://tradewindow.io/legals/terms-of-use

7.4  Critical fixes: If the Client’s access to the Service is completely unavailable or there is a Critical Error in the Software that prevents the Client from producing accurate documents by using the Software that is not the fault of the Client, the Client must immediately notify the Service Provider in writing of such error and the Service Provider must make its best efforts to resolve these issues within 24 hours.

 

8.  INTELLECTUAL PROPERTY

8.1  Ownership:

(a)   Subject to clause 8.1(c), title to, and all Intellectual Property Rights or other rights in the Software and Documentation and all related materials, technology or Services made available by the Service Provider to the Client pursuant to this Agreement, including all Underlying Systems and the Website, remain (as between the Parties) the sole and exclusive property of the Service Provider.  The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

(b)   The Service Provider shall own all rights in any corrections, fixes, enhancements, updates, improvements, inventions, designs and modifications to all such materials and technology (including the data, methodologies and concepts therein) and related materials and all derivatives of the foregoing.

(c)   Title to, and all Intellectual Property Rights in the Data (as between the Parties) remains the property of the Client. The Client grants the Service Provider a worldwide, non-exclusive, fully paid up, non-transferable licence to use the Data solely for the purpose of the exercise of its rights and performance of its obligations in accordance with the Agreement for the duration of the term of this Agreement, subject to any conditions which the Client may reasonably require.

8.2  Know-how:

(a)   Know-how in all Software, Services and Deliverables (which incorporate its use, development, manufacture, improvement, adaptation, enhancement, alteration, techniques, methodologies or modification, or new application of the Intellectual Property and/or the know-how) that are licensed or otherwise supplied by the Service Provider to the Client (including any Affiliate(s) of the Client) remains the Intellectual Property of the Service Provider.

(b)   To the extent not owned by the Service Provider, but owned by the Client, and only for the purpose of the Service Provider’s provision of the Services under this Agreement, the Client grants the Service Provider a royalty-free, non-transferable and revocable licence to use for the Service Provider’s provision of the Services under this Agreement any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Service Provider in the provision of the Service.

8.3  Feedback:  If the Client provides the Service Provider with ideas, comments or suggestions relating to the Service or Underlying Systems (Feedback):

(a)   all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications, or derivative works), are owned solely by the Service Provider; and

(b)   the Service Provider may use or disclose the Feedback for any purpose.

8.4  Third Party sites and material: The Client acknowledges that the Service may link to Third Party websites such as Third Party Cloud Service Providers or feeds that are connected or relevant to the Service. Any link from the Service does not imply any endorsement, approval, or recommendation of, or responsibility for, those websites or feeds or their content or operators by the Service Provider. To the maximum extent permitted by law, the Service Provider excludes all responsibility or liability for those websites, Third Party Cloud Service Providers, or feeds.

 

9.  CONFIDENTIALITY

9.1  Security:  Each Party must:

(a)   keep confidential at all times the Confidential Information of the other Party;

(b)   effect and maintain adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access or use; and

(c)   disclose the other Party’s Confidential Information to its personnel or professional advisors on a need-to-know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other Party’s Confidential Information is aware of and complies with, the provisions of clauses 9.1(a) and 9.1(b).

9.2  Permitted disclosure: The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:

(a)   required by law (including under the rules of any stock exchange);

(b)   which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

(c)   which was rightfully received by a Party to the Agreement from a Third Party without restriction and without breach of any obligation of confidentiality; or

(d)   by the Service Provider if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a Third Party, provided that the Service Provider enters into a confidentiality agreement with the Third Party on terms no less restrictive than this clause 9.

 

10.  WARRANTIES

(a)   Each Party warrants that:

(i)       it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting Party;

(ii)      it will comply with all Relevant Law;

(iii)      it will not infringe any person’s rights (including Intellectual Property Rights and Moral Rights); and

(iv)     neither it nor any of its officers, employees, agents, subcontractors or any person acting on its behalf has offered, given or agreed to give any person any inducement or reward (or anything which might be considered an inducement or reward) in connection with the Parties entering into this Agreement.

(b)    the Service Provider warrants that it:

(i)       will use reasonable care and skill in providing the Service; and

(ii)      will use reasonable commercial endeavours in accordance with good industry practice to keep the Software free of viruses and other harmful code;

(iii)      has the full power and right to grant to the Client each of the software licenses outlined in this Agreement.

(c)   the Client warrants that it will comply with the restriction of use and warranties as set out in the Agreement.

(d)   Except as specifically provided in this section, and to the maximum extent permitted by Relevant Law, the Service Provider disclaims all warranties, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, reliability or security standard or non-infringement or un-interruption. The Service Provider makes no warranty that the Licensed Software or any information or Data accessed or stored therein will meet the Client’s requirements or be accurate, complete, error-free, reliable, or available or that the use of the Licensed Software will fulfil or meet any statutory role or responsibility of the Client. To the extent that a particular jurisdiction does not allow for the exclusion of a warranty, that warranty will be limited to the minimum period of time required by law starting as of the Commencement Date, and the invalidity of the disclaimer will not affect any other disclaimer or limitation contained in this Agreement.

(e)   The Client furthermore agrees that it is relying entirely upon its own judgment in entering into this Agreement and not upon any warranty or other representation either expressed or implied by the Service Provider that the Software is fit for the purpose as required by the Client or for any particular purpose.

(f)   The Client agrees and represents that it is acquiring the Service, and entering the Agreement, for the purposes of trade. The Parties agree that:

(i)       to the maximum extent permissible by Relevant Law, any competition and consumer protection legislation does not apply to the supply of the Services or the Agreement; and

(ii)      that it is fair and reasonable that the Parties are bound by this clause 11(f).

 

11.  COVENANTS

(a)    Client: The Client provides the following covenants to the Service Provider:

(i)       not to copy, reproduce, translate, or decompile the Software nor to communicate the same to any Third Party without the Service Provider’s prior consent;

(ii)      in respect of Licenced Services, to maintain accurate and up-to-date records of the number and location of all backup copies of the Software; and

(iii)      to return to the Service Provider, within fourteen (14) days after the date of termination or discontinuance of this Agreement for whatever reason, the Software together with all documentation relating thereto or made in connection therewith and to furnish the Service Provider with a certificate, certifying that the same has been done.

 

12.  LIABILITY AND INDEMNITIES

(a)   To the fullest extent permitted by law, the Service Provider shall not be liable whatsoever for:

(i)        any lost profits, lost savings, loss of reputation, loss of goodwill, loss of Data, interruption of business or for any indirect, incidental, punitive, special or consequential loss or damages whatsoever,

(ii)       any loss or damages arising out of, or in connection with, this Agreement, the Software, theDocumentation or the  Services including their use, unavailability, or failure,  regardless of  whether or not such claims  are based on tort (including negligence), breach of warranty, contract or any other legal theory – even if the Service provider  has been advised, or is  aware, of the possibility of such damages.

(iii)      any loss, corruption, or recovery of Client Data, except where such loss is directly caused by the Service Provider’s gross negligence or willful misconduct. The Client is responsible for maintaining independent backups of its Data.

(iv)     any issues arising from Client misuse, improper configuration, unauthorized modifications, or failure to follow best practices related to the Software, Documentation, or Services.

(v)     any delays, errors, or failures caused by third-party service providers, including but not limited to Microsoft Azure, AWS, or other cloud hosting providers. The Client acknowledges that the Service Provider is not responsible for third-party disruptions, outages, or security breaches.

(b)   Liability Cap and Exclusive Remedies: To the maximum extent permitted by law, the total aggregate liability of the Service Provider under this Agreement (including all Statements of Work and/or Pricing Schedules), whether in contract, tort (including negligence), or otherwise, shall not exceed $1,000 (one thousand dollars) in aggregate for all claims arising under this Agreement. If the Service Provider is found liable under this Agreement, the Client’s sole and exclusive remedies shall be limited to:

(i)      the supply of the Services again; or

(ii)     the payment of the cost of having the Services supplied again, provided that in no event shall the Service Provider’s total liability exceed the limitation of $1,000, or

(iii)  Service Credits provided under the SLA (if applicable) shall be the Client’s sole and exclusive remedy for Service Availability issues and shall be subject to the limitations and exclusions set out in the SLA provided that in no event shall the Service Provider’s total liability, including for any resupply or reimbursement, exceed the liability cap set out in this clause.

(c)   Indemnification: The Client agrees to defend, indemnify and hold harmless the Service Provider from and against any and all liability, claims, damages, obligations, losses, liabilities, costs, debts, fines, late fees, cancellation fees and expenses (including attorney’s fees) arising directly or indirectly from:

(i)       the Client’s use, misuse or inability to use the Software and Documentation (or any part thereof);

(ii)      any breach of these Terms and Conditions by the Client;

(iii)     any damage of any sort, whether direct, indirect, special or consequential, that the Client may cause to any third party which relates to the Client’s use of (or inability to use) of the Software and Documentation;

(iv)     the violation by the Client of any third party intellectual property rights, privacy rights or other rights through the Client’s use of the Software and Documentation; and

(v)      the Client’s violation of any Relevant Law.

(d)   Neither Party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other Party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other Party or its personnel.

(e)   Each Party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other Party under or in connection with the Agreement.

 

13.  TERM, TERMINATION AND SUSPENSION

13.1 Duration:  Unless terminated under this clause:

(a)   the Agreement starts on the Commencement Date and ends on the latest End Date between all Statements of Work and/or Pricing Schedules entered into between the Service Provider and the Client;

(b)   each Service starts on the respective Start Date and ends on the respective End Date as defined in each Statement of Work and/or Pricing Schedule relating to that Service and;

(c)   where no End Date is set out in a Statement of Work and/or Pricing Schedule relating to that Service, the Agreement shall continue for successive terms of 12 months from the Start Date and shall continue indefinitely thereon unless a Party gives thirty (30) days’ notice that the Agreement will terminate on the expiry of the then-current term.

13.2 Termination:

(a)   Either Party may, by notice to the other Party, immediately terminate the Agreement if the other Party:

(i)       Materially Breaches the Agreement and the breach is not remedied within ten (10) days of the receipt of a notice from the first Party requiring it to remedy the breach, or is not capable of being remedied; “Material Breach” means a substantial, ongoing, and unremedied failure by either Party to perform a material obligation under this Agreement or the SLA that:

(aa)      Materially impacts the Client’s ability to use the Services for its core business operations;

(bb)     Is not excused under any force majeure event, third-party hosting provider failure, or any other cause beyond the Service Provider’s reasonable control;

(cc)     Persists beyond the applicable cure period set out in this Agreement or the SLA, or is not capable of being remedied; and

(dd)     Has a demonstrable and material adverse effect on the Client’s use of the Services, where such effect is not caused by the Client’s own acts, omissions, or failure to comply with the Agreement or SLA.

(ii)      becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

(iii)      is unable to perform a material obligation under the Agreement for thirty (30) days or more due to force majeure.

(b)    The Service Provider may, by notice to the Client, immediately suspend or terminate the Agreement if the Client fails to pay any amount due under this Agreement within fourteen (14) days of the due date. On termination or expiry of the Agreement, including termination under Clause 13.2(b), the Client must immediately pay all arrears or Fees, amortised installation fees, charges or any other payments arising in respect of the Service and/or any Related Service, and/or any Statement of Work, this Agreement or otherwise, and any costs and expenses, including legal and other fees incurred by the Service Provider in relation to such arrears as well as any costs or expenses incurred as a result of such termination. Notice of termination under this clause must be provided in writing and delivered in accordance with Clause 15(j).

(c)    Either Party may terminate this Agreement in whole or in part (including any parts of the Service) without cause in a Party’s absolute discretion upon giving 30 (thirty) days’ notice to the other Party.

13.3 Consequences of termination or expiry:

(a)   Termination or expiry of the Agreement does not affect either Party’s rights and obligations accrued before that termination or expiry.

(b)   On termination or expiry of the Agreement, the Client must immediately pay all arrears or Fees, amortised installation fees, charges or any other payments arising in respect of the Service and/or any Related Service, and/or any Statement of Work, this Agreement or otherwise, and any costs and expenses, including legal and other fees incurred by the Service Provider in relation to such arrears as well as any costs or expenses incurred as a result of such termination.

(c)   For the avoidance of any doubt, upon the termination of this Agreement (for whatever reason), all Statements of Work and/or Pricing Schedules will automatically terminate.

(d)   Except to the extent that a Party has ongoing rights to use Confidential Information, at the other Party’s request following termination or expiry of the Agreement a Party must promptly return to the other Party or securely destroy all Confidential Information of the other Party that is in the first Party’s possession or control.

(e)   At any time prior to thirty (30) days after the date of termination or expiry, the Client may request:

(i)       a copy of any Data stored using the Service, provided that the Client pays the Service Provider the costs of providing that copy. On receipt of that request, the Service Provider must provide a copy of the Data in a common electronic form. The Service Provider does not warrant that the format of the Data will be compatible with any software; and/or

(ii)      deletion of the Data stored using the Service, in which case the Service Provider must use reasonable efforts to promptly delete that Data. To avoid doubt, the Service Provider is not required to comply with clause 13.3(e)(i) to the extent that the Client previously requested deletion of the Data or where Data is stored in a Decentralised System.

(iii)      The Service Provider shall permanently delete all Client Data no later than thirty (30) days after the date of termination, unless otherwise required by law.

(f)   To return to the Service Provider, within fourteen (14) days after the date of termination or discontinuance of this Agreement for whatever reason, the Software together with all documentation relating thereto or made in connection therewith and all copies or records of the Software however copied or recorded, whether contained in any data retrieval system or elsewhere, shall be destroyed or erased as the case may be and to furnish the Service Provider with a certificate, certifying that the same has been done.

(g)   The Client’s right to use the Software will immediately cease and any licences granted under this Agreement will immediately terminate.

13.4 Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 5, 8, 9, 10, 11, 12, 13, and 14 continue in force.

13.5 Rights to restrict:  Without limiting any other right or remedy available to the Service Provider, the Service Provider may restrict or suspend the Client’s access to the Service if the Client (including any of its personnel) has:

(a)   undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;

(b)   used, or attempted to use, the Service:

(i)       for improper purposes; or

(ii)      in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;

(c)   transmitted, inputted or stored any Data that breaches or may breach the Agreement or any Third Party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

(d)   otherwise materially breached the Agreement and the breach has not been remedied in accordance with clause 13.2(a)(i).

(e)    failed to pay any amount due under this Agreement within fourteen (14) days of the due date, in accordance with Clause 6.7’ or

(f)    if the Service Provider reasonably believes that continued access may pose a security risk, including but not limited to suspected unauthorized access, hacking attempts, or exposure of sensitive Data.

(g)   If the Client raises a liability claim beyond the cap set out in Clause 12(b), or seeks remedies outside those expressly provided under this Agreement.

The Service Provider must notify the Client as soon as reasonably practicable where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under clause 13.5. Clause 13.3(e)(ii) will not apply to the extent that it relates to Data deleted or removed under clause 13.5.

 

14.  DISPUTES

14.1 Good faith negotiations:  Before taking any court action, a Party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

14.2 Obligations continue:  Each Party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

14.3 Right to seek relief:  This clause 14 does not affect either Party’s right to seek urgent interlocutory and/or injunctive relief.

Nothing in this Clause 14 shall be construed to allow the Client to seek damages beyond those expressly limited in Clause 12(b)

 

15.  GENERAL

(a)   The Client must not assign, novate, sublicence or otherwise transfer or deal in any other way with any of its rights under this Agreement without the prior written consent of the Service Provider (at the Service Provider’s sole discretion). No assignment, novation, subcontracting, transfer, or delegation hereof will relieve the assignor of its obligations under this Agreement. Any attempted assignment, novation, subcontracting or transfer that is not permitted is void ab initio. Without limiting the generality of the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties’ respective successors and assigns and the assigning Party will remain liable for the performance of any assignee.

(b)   Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

(c)   If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

(d)   Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

(e)   This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no Party has relied on any representation made by or on behalf of the other.

(f)    The Service Provider reserves the right to modify or update this Agreement (including the SLA) upon providing at least thirty (30) days’ notice to the Client. Continued use of the Services after the notice period shall constitute acceptance of the updated terms.

(g)   A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

(h)   A Party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a force majeure event, provided that the Party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation. Without limiting any other right to terminate under this Agreement, if a force majeure event affects a Party’s performance under this Agreement for more than sixty (60) consecutive days, the other Party may immediately terminate this Agreement by written notice.

(i)    This Agreement is governed by the laws of the country of principal place of business of the Service Provider and each Party submits to the jurisdiction of the courts of such country.

(j)    A notice given by a Party under the Agreement must be delivered to the other Party via email using the email address set out in the relevant Statement of Work and/or Pricing Schedule or otherwise notified by the other Party for this purpose.

(k)   The Service Provider is granted a limited right during the term of the Agreement to use the names, images, logos, trademarks, service marks or any other Intellectual Property of the Client in any advertising, marketing, promotional material, publicity, press release, presentation or proposal; or to express or to imply any endorsement of the Service Provider or its equipment or services by any member of the Client.

(l)    In performing its obligations in connection with this agreement, the Service Provider will and will ensure that each of its personnel and each of its Affiliates will comply with all Modern Slavery Laws and take reasonable steps to ensure that there is no Modern Slavery in its or its personnel’s supply chains or in any part of their business.

(m)  Each Party represents, warrants and agrees that it and all its representatives are in compliance and will remain in compliance with all Relevant Laws in relation to anti-bribery, anti-corruption, money laundering, fraud or similar activities, during the term of this Agreement.

(n)   The Client shall not issue any public statement, press release, or similar communication regarding the Service Provider, its services, or any aspect of the Agreement without the Service Provider’s prior written consent. This restriction includes, but is not limited to, public reviews, social media posts, and press interactions that could impact the Service Provider’s business or reputation.

(o)   This Agreement, together with the Statement of Work and/or Pricing Schedule, the Service Level Agreement (SLA), and the Data Processing Agreement (DPA), constitutes the entire agreement between the Parties and supersedes all prior agreements, terms, conditions, representations, or understandings (whether written or oral) relating to its subject matter. The Service Provider may update these Terms and Conditions, the SLA, and/or the DPA from time to time by either: publishing the revised version on its Website; or providing written notice to the Client. Continued use of the Services by the Client following such updates constitutes deemed acceptance of the updated terms. If the Client does not agree to the updated terms, it may terminate the Agreement by providing written notice within ten (10) days of the publication or notification of the changes. If no such notice is received, the Client is deemed to have accepted the updated terms. In the event of any inconsistency between this Agreement and any other document, the provisions of this Agreement shall prevail, unless expressly stated otherwise.

 

16.  Definitions and Interpretations

16.1 Definitions

Agreement means these Terms and Conditions, together with the applicable Statement of Work and/or Pricing Schedule, the Service Level Agreement (SLA), the Data Processing Agreement (DPA), and any other documents expressly incorporated by reference.

Affiliate with respect to any legally recognisable entity, any other entity Controlling, Controlled by, or under common Control with such entity.  “Control” means direct or indirect (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity, or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity.  An entity will be deemed an Affiliate only so long as Control exists.

Business Critical Services means those Services which the Parties (each acting reasonably) agree are re mission-critical or necessary for the Client to conduct their business.

Business Day means Monday to Friday and excludes all public or other holidays as recognised in the relevant jurisdiction of the Service Provider.

Collaboration means continuous feedback through an identified contact person of the Client to the Service Provider which will assist with the further development of the Service.

Commencement Date means the date of acceptance of the Agreement by the Client.

Confidential Information means all information provided by one Party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably to be considered confidential based on its content, nature or the manner of its disclosure, but excluding: (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and (b) information developed independently by a Party.

Client means the Client as set out in the Statement of Work and/or Pricing Schedule and includes its affiliates, employees, contractors, agents and representatives.

Cloud-Based Services mean the right to access the Software as a Service (SaaS) offering as provided to the Client by the Service Provider in a specific customised instance which is Cloud Hosted.

Cloud Hosting means data storage on servers hosted by an entity other than the Service Provider and on a network outside the control of the Service Provider.

Critical Error means any error, defect or omission that is discovered in the Software, is reproducible and prevents its operation substantially in accordance with the Documentation.

Decentralised Systems means encrypted systems which are designed in a way (using strong cryptography) that neither the content nor the consistency of Confidential Information stored can be compromised by any foreseeable means by either the hosting or intercepting Third Party.

Data means (a) all data, content, text, drawings and information and other material, in whatever form that information may exist which: (i) are owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Software, including any Personal Information of the Client as defined in Relevant Law.

Deliverables refer to any items to be delivered to the Client.

End Date means in relation to any specific Service, the end date set out in the Statement of Work and/or Pricing Schedule.

Fees mean, in respect of each Service, the fees set out in the Statement of Work and/or Pricing Schedule relating to that Service, as updated from time to time in accordance with clause 6.

force majeure means any event that is beyond the reasonable control of a Party, excluding an event to the extent that it could have been avoided by a Party taking reasonable steps or reasonable care; or a lack of funds for any reason.

Go Live Date means the date immediately following User Acceptance Testing as set out in clause 3.6.

GST means the relevant tax law in the applicable jurisdiction of the principal place of business of the Service Provider.

Hosting Services: Hosting Services refers to the provision of infrastructure, data storage, and related cloud computing resources required for the operation of the Cloud-Based Services. Hosting Services are provided by third-party Cloud Hosting providers, including but not limited to Microsoft Azure, as determined by the Service Provider.

Hosting Provider means any third-party provider engaged by the Service Provider to host the Software as part of the Cloud-Based Services, including Microsoft Azure or such other provider as may be appointed by the Service Provider from time to time.

Insolvency Event means an entity: (a) enters into receivership or liquidation; (b) is removed from the relevant companies register or has a liquidator, receiver, administrator or statutory manager appointed; (c) becomes (or is deemed to be) insolvent or is unable to pay its debts when they become due or is presumed under any applicable Relevant Law to be unable to pay its debts; or (d) makes or proposes any assignment to, or enters into any arrangement for the benefit of, all or some of its creditors (other than for the purposes of a solvent restructuring with written notice to the other Party).

Intellectual Property Rights include copyright and all rights existing anywhere in the world and databases, confidential information, know-how, all, copyrights, inventions, trade secrets, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning and includes any enhancement, modification or derivative work of the Intellectual Property.

Key Details specific details set out in the Statement of Work and/or Pricing Schedule

Licenced Services means any Service described as such in a Statement of Work and/or Pricing Schedule.

Maintenance and Support Agreement means the relevant terms associated with any maintenance and support work to be carried out by the Service Provider.

Modern Slavery Law refers to any statute, ordinance, code or other law including regulations under them and any code of practice, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law, relating to Modern Slavery or similar matters and is applicable in the jurisdiction in which the Client or the Service Provider is registered or conducts business or in which activities relevant to this Agreement are to be performed.

Moral Rights have the meaning given under the Copyright Act in the country of jurisdiction of the Service Provider and include any similar rights existing in other countries.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Parties mean the Service Provider and the Client collectively, and a Party has a corresponding meaning.

Payment Terms means: Where a Statement of Work and/or Pricing Schedule includes payment terms, then, in respect of the Services to which that Statement of Work and/or Pricing Schedule relates those payment terms; or in all other cases, the payment terms set out in clause 6.

Permitted Users means those personnel of the Client who are authorised to access and use the Licensed Software on the Client’s behalf and for which a licence for the Licensed Software has been reserved as set out in the Statement of Work and/or Pricing Schedule.

Personal Information has the meaning given in the applicable Privacy Act in the jurisdiction in which the Service Provider conducts its business as set out in the Statement of Work and/or Pricing Schedule.          .

Program Specification means those program specifications relating to the applicable Service as described in a Statement of Work or otherwise notified to the Client by the Service Provider in writing.

Proprietary Information includes but is not limited to, all information, data, reports, analyses, processes, know-how, designs, plans, marketing data, business plans and strategies, negotiations and contracts, research and volunteer compilations, trade secrets, and confidential information, whether in written, oral or electronic form, which is confidential in nature.

Related Services means any related service described in a Statement of Work and/or Pricing Schedule or any further services that the Service Provider agrees to provide to the Client under the Agreement.

Relevant Law means any statute, ordinance, code or other law including regulations under them and any code of practice, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law, applicable to this Agreement, the Confidential Information, and any other obligations performed under this Agreement.

Representative of a Party includes an employee, agent, officer, director, auditor, advisor, partner, consultant, joint venturer, contractor or sub-contractor of that Party.

Server the server of the Client as set out in the Statement of Work and/or Pricing Schedule.

Service means the provision of Licenced Service/s, Subscription Service/s and/or any Related Service/s as described in the Statement of Work and/or Pricing Schedule.

Service Availability means the percentage of time that Cloud-Based Services are accessible and operational, as measured in accordance with the Service Level Agreement (SLA). Service Availability excludes any Scheduled Maintenance, Force Majeure Events, third-party hosting provider outages, and other exclusions specified in the SLA.

Service Level Agreement” or “SLA” means the Service Provider’s service level commitments applicable to the Services, as published at https://tradewindow.io/legals/sla-prodoc-cube or otherwise notified to the Client in writing from time to time.

Service Provider means the Service Provider as fully set in in the Statement of Work and/or Pricing Schedule.

Start Date  means in relation to any specific Service, the start date set out in the Statement of Work and/or Pricing Schedule relating to that Service.

Statement of Work means the completed order form signed between the Parties, which sets out the Services, Users and Fees.

Software means the Software owned by the Service Provider (and its Service Providers) that is used to provide the Service, which includes embedded or associated documents (the Documentation).

Subscription Fee means the fees for the right to access and use the Service as specified in the applicable Statement of Work and/or Pricing Schedule

Subscription Services means any Service described as such in a Statement of Work and/or Pricing Schedule.

System means the operating computer system of the Client.

Third Party means, without limitation, any person (juristic or natural), who is not a party to this Agreement.

Third Party Cloud Service Provider means any third-party Cloud Hosting provider/s with whom the Service Provider has contracted for the provision of the Cloud Hosting services.

Underlying Systems means the Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any Third Party solutions, systems and networks.

Use means the limited right of use of the Service as set out in clause 2 of these Terms and Conditions.

User Acceptance Testing (UAT) means the process as set out in clause 3.6.

Warranty Support Period means a period of thirty (30) days from the Go Live Date.

Website means the internet site at the domain of the Service Provider or such other site notified to the Client by the Service Provider located at www.tradewindow.io.

Year means a 12-month period starting on the Start Date or the Commencement Date (as applicable) or the anniversary of that date.

 

16.2    Interpretation

Unless the context requires otherwise:

(a)   a reference to a person includes a corporation or any other legal entity;

(b)   the singular includes the plural and vice versa;

(c)   headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

(d)   the term “includes” (or any similar term) means “includes without limitation”; and

(e)   a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it;

(f)   a reference to dollars or $ is the local currency unless expressly stated otherwise; and

(g)   if there is a conflict between the Statement of Work and/or a Pricing Schedule, the Terms of Use and these Terms and Conditions, these Terms and Conditions will prevail unless expressly stated otherwise.