This Customer Agreement is between IXUP Limited ABN 85 612 182 368 (IXUP) and the purchaser of the Software subscription specified in the Order (Customer).
1 Software Licence
1.1 Licence. IXUP will make the Software available to Customer and grant Customer a non-exclusive, non-transferable licence to:
in each case, solely for the Approved Purpose during the paid Licence Term subject to compliance with the terms of the Agreement.
1.2 Licence Restrictions. Customer must ensure that:
1.3 Support Services. IXUP must provide Support Services for the current and immediately prior version of the Software for the duration of the Subscription Term. Customer must provide all information and assistance reasonably required by IXUP to perform the Support Services.
1.4 Professional Services. If Customer wishes to purchase Professional Services from IXUP, the parties must agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.
1.5 Evaluation use. If IXUP permits Customer to evaluate the Software prior to purchasing a subscription:
2 Customer responsibilities
2.1 Usage responsibilities. Customer uses the Software at its own risk and is solely responsible for:
3 Fees, invoicing and payment
3.1 Fees. The Fees are payable in consideration of IXUP’s supply of the Software, Support Services and any Professional Services. Customer must provide information relating to its use of the Software as required to enable IXUP to calculated the Fees payable. IXUP may increase the Fees at any time, unless agreed otherwise with Customer.
3.2 Invoicing and payment. IXUP must issue invoices for the Fees to Customer at the times specified in the Order or applicable SOW. Customer must pay all Fees invoiced by IXUP, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by IXUP are non-cancellable and non-refundable.
3.3 Late Payment. If Customer fails to pay any Fees (that are not disputed in good faith) by the due date for payment, IXUP may:
in each case, from the due date for payment until the date that payment is made by Customer.
3.4 Verification. IXUP may on 14 days’ notice conduct an audit of Customer’s use of the Software and compliance with the Agreement from time to time during the Subscription Term. Customer must provide all access to the Environment, End Users, records, premises and personnel reasonably requested by IXUP in connection with any such audit. IXUP must bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Software in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Customer must immediately:
3.5 Taxes. The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, VAT, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).
4 Intellectual Property Rights
4.1 Ownership. All Intellectual Property Rights in and to the Software and output of the Professional Services, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Software developed by or on behalf of Customer and End Users, vests or remain vested in IXUP or its licensors. If any such Intellectual Property Right vests in Customer or End Users, Customer hereby assigns, and must procure that each End User assigns, that Intellectual Property Right to IXUP with immediate effect. Customer must take all further steps (including execution of documents) necessary to give effect to this clause.
4.2 No other rights. Neither Customer nor any End User receives any right, title or interest in or to the Software other than the licence expressly granted to Customer under clause 1.1.
4.3 Notice of infringement. Customer must immediately notify IXUP in writing upon becoming aware of any:
4.4 Remedial action. If the Software is the subject of an IP Claim, IXUP may (at its cost and option) either:
This clause 4.4 and clause 6.4 sets out Customer’s sole and exclusive remedy in respect of any IP Claim.
5.1 Obligation of confidence. Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 0.
5.2 Permitted use. The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.
5.3 Permitted disclosures. The Recipient may disclose Confidential Information of the Discloser:
To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party’s name and logo, without being in breach of this clause.
5.4 Usage data and analyses. IXUP may:
6 Warranties and indemnities
6.1 Warranties. IXUP warrants that:
IXUP must, as Customer’s sole and exclusive remedy, repair or replace the Software or resupply any Support Service or Professional Service which does not comply with the warranties in this clause within a reasonable period of confirmation of the non-compliance.
6.2 No other terms. To the extent permitted by law, IXUP excludes all conditions, warranties and guarantees other than those set out expressly in the Agreement. Without limitation, IXUP does not warrant that the Software, Support Services or any Professional Service will be:
6.3 Non-excludable terms. If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, IXUP’s liability for breach of such condition, warranty or guarantee is limited (at IXUP’s option) in the case of:
6.4 IXUP indemnity. IXUP must indemnify Customer against all loss and damage suffered or incurred by Customer arising out of or in connection with any IP Claim in each case, except to the extent that the claim or breach is caused or contributed to by Customer, End Users or any third party product or service.
6.5 Customer indemnity. Customer indemnifies IXUP and its Affiliates against and must pay on demand all loss and damage suffered or incurred by any of them arising out of or in connection with:
in each case, except to the extent that the claim or breach is caused or contributed to by IXUP.
6.6 Conduct of claims. The indemnification obligation of a party (indemnifying party) under clause 6.4 or 6.5 in respect of any third party claim is subject to the other party:
6.7 Sole and exclusive remedy. Without prejudice to the termination rights of each party:
7.1 Exclusion of Indirect Loss. To the extent permitted by law, each party excludes any and all liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any Indirect Loss.
7.2 Limitation of liability. The liability of a party arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by Customer under the Agreement in that Subscription Year, subject to clause 7.3.
7.3 Unlimited liability. The limitation of liability in clause 7.2 does not apply to the liability of a party:
7.4 Injunctive relief. Customer acknowledges that damages are not a sufficient remedy for any breach of clause 1.1, 1.2, 2.1, 4 or 5 of the Agreement and that IXUP is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those clauses (in addition to any other remedies).
8 Term, suspension and termination
8.1 Subscription Term. The Agreement will remain in force for the Subscription Term, unless terminated earlier in accordance with this clause 8.
8.2 Suspension. IXUP may suspend the licence granted pursuant to clause 1.1 during any period in which Customer is in breach of the Agreement (subject to clause 3.3(a) in the case of late payment).
8.3 Termination for cause. A party may terminate the Agreement with immediate effect on written notice if the other party:
8.4 Consequences of termination or expiry. On termination or expiry of the Agreement:
9.1 Entire agreement. This Customer Agreement, the Order and any SOW are the entire agreement between the parties in respect of their subject matter. In the event of any inconsistency between the terms of this Customer Agreement, the Order and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.
9.2 Amendment. IXUP may amend this Customer Agreement at any time by posting the amended version of this Customer Agreement at https://ixup.com/legal/customer-agreement-paas. Any amended version of this Customer Agreement will only apply to Orders entered into following the date of the amendment to this Customer Agreement.
9.3 Force Majeure Events. IXUP is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.
9.4 Severance. If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.
9.5 Transfer. Customer must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of IXUP.
9.6 Waiver. A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
9.7 Third party rights. No person other than IXUP and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.
9.8 Relationship of the parties. The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.
9.9 Governing Law. The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.
In this Customer Agreement, these terms have the following meanings:
Affiliate means of a party means an entity that Controls, is Controlled by, or is under common Control with that party.
Agreement means the agreement consisting of this Customer Agreement, the Order and any SOW.
Approved Purpose means a specific approved use of the Software specified in the Order.
Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:
Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:
End User means any person who uses the Software licensed to Customer.
Environment means Customer’s computing environment specified in the Order.
Evaluation Period is defined in clause 1.5(a).
Fees means the fees, costs and expenses for the supply of the Software and Support Services specified in the Order and any Professional Services specified in the applicable SOW.
Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.
Indirect Loss means:
Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.
IP Claim is defined in clause 4.3(b).
IXUP Data means data, information or material comprised in the Software as provided by IXUP.
IXUP Support Services Policy means the document located at https://ixup.com/legal/support-services-policy/.
Order means an order form setting out the details of Customer’s purchased subscription to the Software as specified in any:
including details of the applicable Approved Purpose, Environment, Fees and Subscription Term.
Professional Services means any support, implementation, training, data migration or other service not forming part of the Support Services.
Software means the object code form of the IXUP Secure Data Analytics software specified in the Order, including any Updates.
SOW means a statement of work setting out the details of the Professional Services to be provided by IXUP, including the agreed scope and fees for the Professional Services.
Subscription Term means:
Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.
Support Services means:
in each case, in accordance with the IXUP Support Services Policy. The Support Services exclude help desk, diagnostic, onsite and other first and second line support services.
Updates means any new version, release, update, patch, fix, configuration or other modification of the Software made available by IXUP to its customers generally during the Subscription Term.