Protecht.ERM Terms & conditions

 

INTRODUCTION

This Agreement governs the provision of Services by the Protecht Group to the Customer Group, including the Customer Group’s access to and use of the Protecht.ERM Service. This Agreement is effective between You and Us as of the Commencement Date.

 

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, the following meanings apply unless the contrary intention appears:

"Additional Fees" means the fees payable for Additional Services at or not exceeding (i) the fee rate (daily, annual, fixed or other) specified in the Order Form or in any SOW, or (ii) where the fee rate is not so specified, Our then current published rates for Additional Services, and includes any additional data storage charges payable for excess data storage in accordance with Item 2C of the Schedule;

“Additional Services” means any services that are additional to the Basic Services, including any Retainer, Service Plan, Marketplace Plan or Optional Features and Modules, specified in the Order Form or in any SOW, and includes the additional services specified in Item 2 of the Schedule;

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;

“Agreement” means the contract between the Customer and Protecht which is formed by the Customer and Protecht signing an Order Form, including all terms and conditions expressly incorporated in and forming part of this Agreement;

"Annual Subscription Fees" means the annual subscription fees payable for the Basic Service specified in the Order Form;

“Anonymous User” means a person who accesses, completes and submits a form for an anonymous entry enabled register that is published by the Customer Group from the Protecht.ERM Service and who has not been supplied usernames and passwords by You (or by Us at Your request) to access and use the Protecht.ERM Service;

“Authority” means any government or semi-government statutory, public or other authority or body regulating the Customer;

“Basic Services” means the services specified in Item 1 of the Schedule;

“Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales;

“Business Hours” means the hours of 8am to 6pm during Business Days;

“Change Order Form” means a form prepared by Us documenting any mutually agreed changes to the Services;

“Commencement Date” means the date specified in the Order Form or, if no date is specified, the date of execution of this Agreement by You;

“Confidential Information” means all confidential information disclosed by the Disclosing Party to the Receiving Party, whether verbally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data. Our Confidential Information includes all information related to the Services. Confidential Information of each party includes the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by that party. However, Confidential Information (other than Your Data) does not include any information that:

(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;

(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;

(c) is received from a third party without breach of any obligation owed to the Disclosing Party, or

(d) was independently developed by the Receiving Party;

"Content” means the content available to Users as part of the Services;

"Customer" means the Person described in the Order Form;

“Customer Group” means the Customer and each Affiliate of the Customer, and “Customer Group Entity” means an entity in the Customer Group;

"Customer Hardware" means the customer hardware specified in Item 4 of the Schedule for which You are responsible in order for Users to access and use the Protecht.ERM Service;

"Customer Internet Connection" means the customer internet connection specified in Item 4 of the Schedule for which You are responsible in order for Users to access and use the Protecht.ERM Service;

“Customer LMS Terms and Conditions” means the terms and conditions governing access to and use of Protecht Academy Courses through the Customer’s LMS, which are available at the following link: https://www.protechtgroup.com/terms-conditions/protecht.customer_LMS_academy_v1.0apac_q93Fk1Wx;

"Customer Software" means the customer software specified in Item 4 of the Schedule for which You are responsible in order for Users to access and use the Protecht.ERM Service ;

“Data Entry User” means a User with access to and use of the Protecht.ERM Service limited to the functionality specified in the Order Form or, if no functionality is specified, the following default functionality: (i) entering data in a Register and viewing that data, (ii) responding to compliance questions, (iii) responding to key risk indicator data requests, and (iv) updating their own action items. Data Entry Users are also able to view launchpads assigned to their role;

“Data Processing Addendum” or “DPA” means the addendum to this Agreement of that name which is available at the following link: https://www.protechtgroup.com/terms-conditions/protecht.DPA_v1.1_m8K49Tr1;

"Disclosing Party” means the party disclosing or making available its Confidential Information;

“Documentation” means all manuals, help files and other documents supplied by Us to You relating to the Software, whether in electronic or hardcopy format;

“Downtime” means any period in any relevant Month when access to the Protecht.ERM Service is disrupted or unavailable;

“Early Termination Fee” has the meaning given in clause 10.2(a);

"Extension Period" has the meaning given in clause 10.1(c);

“Force Majeure Event” means, in relation to a party, any failure by that party to perform its obligations under this Agreement (excluding payment obligations) as a result of a cause beyond its control, including any: act of God; act of a public enemy; act of any military, civil or regulatory authority; act of terrorism; civil unrest; change in any law or regulation; act of government; fire, flood, earthquake, storm or other like event; disruption to or outage of any communications, energy or other utility network or facility (including outages on the internet); strikes or other labour dispute or industrial action; epidemic, pandemic or public health emergency; supply chain disruptions, including any failure by a third party supplier of products or services (including the Third Party Hosting Provider) to perform its supply obligations or any other cause, whether similar or dissimilar to any of the foregoing;

“Full User” means a User with access to all data and functionality, limited only by the permissions granted to that User;

“Implementation Fee” means the fee payable for the Implementation Services specified in the Order Form;

"Implementation Services" means, subject to Item 3 of the Schedule, any implementation services specified in the project plan agreed between Protecht and the Customer;

"Initial Period" has the meaning given in clause 10.1(a);

“Insolvent” means becoming insolvent, or entering in to administration or having a controller appointed, or being placed in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement with creditors, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due or having something with the same or a similar effect appointed under the laws of any jurisdiction;

“Intellectual Property Rights” means all current and future registered and unregistered rights protected by statute, common law or equity anywhere in the world, including patents, patentable information, copyright, designs, user interfaces, formats, reports, semiconductor and circuit layouts, trademarks, trade secrets, know-how, rights in respect of confidential information, inventions and discoveries, licences and other rights to possess and use the works and subject matter of all other intellectual property rights, trading names and domain names, but excluding Moral Rights;

"LMS” means software used to deliver learning and research content to Users;

"Malicious Code" means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs;

“Marketplace” means the online platform for Optional Features and Modules and includes a collection of pre-configured forms, registers, reports and dashboards, inclusive of taxonomies and workflows, for the Protecht.ERM Service;

“Marketplace Plan” means a plan for access to Marketplace for which a fee is payable annually in advance;

“Marketplace Terms and Conditions” means the terms and conditions governing access to and use of Marketplace, which are available at the following link: https://www.protechtgroup.com/terms-conditions/protecht.marketplace_v1.1apac_Az94kY3b;

“Material” means tangible and intangible information, documents, reports, software (including source code and object code), inventions, data and other materials in any media whatsoever;

“Modern Slavery Laws” means any law which prohibits modern slavery and which is applicable or otherwise in force in the jurisdiction in which You or We are registered or conduct business or in which the activities relevant to this Agreement are to be performed, or which imposes modern slavery reporting obligations on one or both parties;

“Month” means calendar month;

“Moral Rights” means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed, and rights of a similar nature anywhere in the world;

"Non-Scheduled Downtime" has the meaning given in clause 6.1(c);

"Optional Features and Modules" means: (i) non-standard features, functionality or modules of the Protecht.ERM Service that are not made available to all subscribers of the Protecht.ERM Service; and (ii) refinements to, improvements of or new features, functionality or modules of the Protecht.ERM Service, over and above any standard refinements to, improvements of or new features, functionality or modules introduced through a maintenance release or enhancement release made available to all subscribers of the Protecht.ERM Service, and includes Optional Features and Modules available through Marketplace;

“Order Form” means an order for Services incorporating these Terms and Conditions;

“Person” means any individual, sole proprietor, joint venture, partnership, company, corporation, entity, firm, organisation, association, bank, credit union, cooperative, building society, trust, estate, government, governmental agency, regulatory authority, or anything else that has a legal identity;

“Personal Data" and “Privacy Laws” have the meanings given in the DPA;

“Personnel” of a Person means individuals who are the officers, employees, contractors or agents of that Person;

“Proprietary Items” means the Services and all underlying software, documents, content and other materials used for the provision of the Services, including the Software, Documentation and Content, the object code and the source code for the Software, the visual expressions, user experience (including feedback from Users, Anonymous Users and the Customer and all developments of new and modifications, revisions, updates, releases, refinements, improvements and enhancements to existing products and services using that feedback), formats (including screen, form, register, report, dashboard and other formats) and other design features of the Software, layouts, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Software, Documentation or Content, all future modifications, revisions, updates, releases, refinements, improvements and enhancements of the Software, Documentation or Content, all derivative works based upon any of the foregoing, all copies of the foregoing and all Intellectual Property Rights and Moral Rights in relation to any of the foregoing, and includes the Trademarks (as defined in clause 9.4);

“Protecht” means Protecht.ERM Pty Ltd (ABN 50 158 878 347);

“Protecht Academy Courses” means the courses of learning and research content delivered through the service known as Protecht Academy;

“Protecht Group” means Protecht and each Affiliate of Protecht and “Protecht Group Entity” means an entity in the Protecht Group;

“Protecht.ERM Service" means the provision by Us of online cloud-based enterprise risk management software as a service, including access to and use of the Software, the Documentation and the Content by Users;

“Protecht LMS Terms and Conditions” means the terms and conditions governing access to and use of Protecht Academy Courses through Protecht’s LMS, which are available at the following link: https://www.protechtgroup.com/terms-conditions/protecht.LMS_academy_v1.0apac_i5u2K61M;

“Receiving Party” means the party receiving or gaining access to Confidential Information of the Disclosing Party;

“Register” means a distinct grouping of forms that allow capturing of data. Examples include incidents, breaches, customer complaints or conflicts of interest;

“Retainer” means access to a defined level of additional advisory and analytics services for which a fee is payable annually in advance;

“Scheduled Downtime” has the meaning given in clause 6.1(a);

“Service Plan” means a plan for access to an enhanced level of services to be provided by Us to You for which a fee is payable annually in advance;

“Services” means the Basic Services, the Additional Services and the Implementation Services, and which, for the avoidance of doubt, includes access to and use of the Protecht.ERM Service;

“Software” means the enterprise risk management software known as Protecht.ERM, developed and owned or licenced by Us, as may be modified, revised and updated from time to time;

“Statement of Work” or “SOW” means a statement of work prepared by Us documenting any mutually agreed Additional Services, including any Retainer, Service Plan, Marketplace Plan or Optional Features and Modules, that are to be provided by Us to You in connection with this Agreement during the Term, and includes any Change Order Form;

“Taxes” has the meaning given in clause 5.5;

“Term” means, subject to clause 10, the Initial Period and all Extension Periods;

“Third Party Content” means Content that is created by a third party and supplied to the Protecht Group for use as part of the Protecht.ERM Service;

“Third Party Content Provider” means a supplier of Content to the Protecht Group;

“Third Party Content Provider Terms and Conditions” means, in relation to particular Third Party Content, the terms and conditions (if any) from time to time of the applicable Third Party Content Provider relating to that Third Party Content which can be accessed on or through the following page of the Protecht Group website: https://www.protechtgroup.com/terms-conditions/protecht.TPCP_v1.0_G951spX3;

“Third Party Hosting Provider” means Amazon Web Services or any other provider of hosting services used by Us in the delivery of the Protecht.ERM Service, with such hosting being provided in Australia;

"User" means a person who is authorised by You to access and use the Protecht.ERM Service, for whom a subscription has been purchased under this Agreement, and who has been supplied with a username and password by You (or by Us at Your request), but excluding any Anonymous Users;

“Vendor” means a supplier to the Customer Group;

“Vendor User” means a User with access to and use of the Protecht.ERM System limited to the functionality specified in the Order Form or, if no functionality is specified, the following default functionality: Accessing a Vendor Portal to perform the tasks determined by the Customer Group;

“Vendor Portal” means a website provisioned by the Protecht Group to enable Vendor Users to access and use the Protecht.ERM System;

"We," "Us" or "Our" means Protecht;

"You" or "Your" means the Customer; and

"Your Data" means all electronic data or information entered into the Protecht.ERM Service by Users and Anonymous Users in the course of accessing and using the Protecht.ERM Service.

 

1.2 Interpretation

In this Agreement:

(a) Clause, schedule and paragraph headings will not affect the interpretation of this Agreement.

(b) A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

(c) A reference to a company will include any company, corporation or other body corporate, wherever and however incorporated or established.

(d) Unless the context otherwise requires

(i) words in the singular will include the plural and in the plural will include the singular;

(ii) a reference to one gender will include a reference to the other genders;

(iii) the word “including” and other similar words do not imply any limitation; and

(iv) derivations of any defined word or term will have a corresponding meaning.

(e) A reference to a specific statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and will include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

(f) A reference to a law (i) includes any constitutional provision, treaty, decree, convention, statute, legislation, judgment, rule of common law or principle of equity and any subordinate legislation, regulation, and rule, ordinance, proclamation or by-law made under that law, and (ii) is to that law as amended, consolidated, supplemented or replaced.

(g) A reference to writing or written includes e-mail but not faxes.

(h) References to clauses and schedules are to the clauses and schedules of this Agreement; references to items are to items of the relevant schedule to this Agreement.

 

2. Protecht.ERM service

2.1. Access to and use of Protecht.ERM Service

(a) Users have a limited, non-exclusive and non-transferrable right to access via the internet and use the Protecht.ERM Service during the Term in accordance with the Documentation and this Agreement. Access to and use of the Protecht.ERM Service by Users is limited to the number of Users specified in the Order Form unless otherwise agreed by the parties in writing. Access to and use of the Protecht.ERM Service by Vendor Users is limited to the number of Vendors specified in the Order Form unless otherwise agreed by the parties in writing. Access to and use of the Protecht.ERM Service by Data Entry Users and Vendor Users is limited to the functionality specified in the Order Form or, if no functionality is specified, to the default functionality specified in the definitions of those terms.

(b) Anonymous Users have a limited, non-exclusive and non-transferrable right to access, complete and submit forms published by the Customer Group from the Protecht.ERM Service during the Term in accordance with the Documentation and this Agreement. The number of registers accessed by Anonymous Users is limited to the number of registers specified in the Order Form unless otherwise agreed by the parties in writing. There is also a limit on the number of forms that may be submitted by Anonymous Users for each register, with additional fees being payable if this limit is exceeded, as specified in Item 2D of the Schedule.

(c) Users and Anonymous Users may only access and use the Protecht.ERM Service for the Customer Group’s internal business purposes in the ordinary course of its business operations.

(d) Access to and use of the Protecht.ERM Service may be subject to other limitations specified in this Agreement or any SOW, such as the limits on disk storage space or on the number of calls the Customer Group is permitted to make to Our help desk specified in the Schedule.

 

2.2 Access to and use of Optional Features and Modules

You agree that Your subscription under this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written representations made by Us regarding future functionality or features. We may offer You the opportunity to subscribe for Optional Features and Modules at additional charges.

 

3. SERVICES

3.1. Provision of the Services

During the Term, We will:

(a) provide the Basic Services;

(b) provide any Additional Services, including any Retainer, Service Plan, Marketplace Plan, Optional Features and Modules, as agreed by You and Us in writing;

(c) provide any Implementation Services, as agreed by You and Us in writing;

(d) make available sufficient and suitably experienced and qualified resources to provide the Services;

(e) ensure that We have and We will maintain all applicable licenses, approvals, certifications and authorisations necessary to provide the Services; and

(f) use commercially reasonable efforts to meet the service level objectives specified in Item 6 of the Schedule.

You acknowledge and agree that We may engage suppliers to provide us with products and services that are used by us to provide the Services.

 

3.2. Changes to the Services

Any changes to the Services must be made using a Change Order Form that is signed by both parties. Changes to Our fees in connection with any changes to the Services will be as specified in the applicable Change Order Form, will be payable annually in advance on each anniversary of the Commencement Date, and will be prorated for the period (if any) to the next anniversary of the Commencement Date.

 

4. YOUR OBLIGATIONS

4.1 Information and assistance

You must:

(a) promptly provide to Us:

(i) all technical and other information that is reasonably required by Us in order for Us to provide the Services; and

(ii) any additional or updated information that may affect the provision of access to or use of the Protecht.ERM Service by Users or Anonymous Users;

(b) promptly provide to Us all information, documentation and assistance reasonably required by Us to diagnose and resolve any technical problems or operational faults with access to and use of the Protecht.ERM Service by Users and Anonymous Users;

(c) reasonably cooperate with Us, as reasonably necessary for Us to provide the Services and perform Our other obligations under this Agreement; and

(d) promptly provide all other resources necessary or appropriate to enable Users and Anonymous Users to access and use the Protecht.ERM Service during the Term.

We are entitled to rely on information provided by You under this provision without making independent enquiries, and We are not responsible for inaccuracies or illegality or omissions in the information provided by You.

 

4.2. Specified configuration

(a) You are responsible, at Your expense, for procuring, maintaining and updating the Customer Hardware, Customer Software and Customer Internet Connection (including data links) in accordance with the specified configuration set out in Item 4 of the Schedule, as may be updated by Us from time to time by written notice to You. We are not responsible or liable for the Customer Hardware, Customer Software and Customer Internet Connection (including data links) or for any access or performance related issues arising out of any failure or delay by You to maintain and update such Customer Hardware, Customer Software or Customer Internet Connection (including data links) in accordance with this provision.

(b) We will only provide support to You if You are using internet browsers that We notify You are supported, including those specified in Item 4 of the Schedule. We will withdraw support of older versions of internet browsers concurrently with withdrawal of support by the internet browser vendor.

(c) We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Protecht.ERM Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Protecht.ERM Service is provided to You using the Customer Internet Connection and the quality and availability of the Protecht.ERM Service may be affected from time to time by technical faults in the network of Your internet service provider. The Protecht Group is not responsible for access limitations caused by Your internet service provider or for Your use of the Protecht.ERM Service being suspended, interrupted or not available due to issues caused by Your internet service provider. You are responsible for all costs charged by Your internet service provider in relation to Your internet service and Your access to and use of the Protecht.ERM Service.

 

4.3. Acceptance of responsibility

(a) You must ensure that Your Data is of a nature that the Customer Group is legally entitled to have and use. You accept that We are merely providing You with ‘software as a service’ that is a shell or platform for the storage and processing of Your Data and You must ensure that Your Data will be of an appropriate nature that will be legal for the Customer Group to store and process. You also acknowledge that We are merely making the Protecht.ERM Service available to You for You to configure and for Users and Anonymous Users to access and use it at Your discretion to process Your Data as You would like. We make no representation nor have any input into the way that it is processed or as to whether it is appropriate or whether the results that are attained from using the Protecht.ERM Service will be appropriate for the Customer Group. You are responsible for and indemnify the Protecht Group and its Personnel from and against any liability that arises from or in connection with the Customer Group or any User or Anonymous User storing or processing Your Data (including inappropriate data) in the Protecht.ERM Service and/or using the Protecht.ERM Service for purposes that are inappropriate or breach this Agreement or any laws.

(b) As a key term of this Agreement, You agree that, given the nature of the Protecht.ERM Service and its flexibility including it being a platform to build online data capture forms, how You configure the Protecht.ERM Service to suit the legitimate business uses of the Customer Group will determine what use it may have to the Customer Group and that, notwithstanding the existence of templates that are available for use, how You configure the Protecht.ERM Service for the Customer Group’s own purposes will determine what use the Customer Group will get from the Protecht.ERM Service and the usefulness of any data that it processes for the Customer Group. You agree that the Protecht.ERM Service is not a substitute for sound process, procedures and human action, however if used appropriately it could be a useful tool notwithstanding that We make no representations as to its suitability. We disclaim all liability with respect to any potential results that the Customer Group may gain from the Protecht.ERM Service and encourage the Customer Group to review its own processes, engage appropriate external experts and rely on its own enquiries in formulating the most appropriate ways for it to use the Protecht.ERM Service. You agree that apart from any training We will be providing to the Customer Group, We have not provided the Customer Group with any other advice, nor with any guidance, and that You take full responsibility for the Customer Group’s own actions and omissions.

(c) We may change Content from time to time without giving You notice. We do not make any promise or give any assurance that any specific content will be included or available. For example, We may remove Content if it is no longer up to date or if Our contract with a Third Party Content Provider expires or terminates. We are not engaged in providing legal, accounting, taxation, financial or other professional services. Content is general information only with respect to its subject matter and does not constitute professional advice, nor is it conveyed or intended to be conveyed in the course of any adviser-client relationship. As such, any fiduciary relationship between You and any member of the Protecht Group is expressly excluded. The Protecht Group is not responsible for any opinion that may be given in Content, which is the opinion of the individual giving it and not of the Protecht Group. The Protecht Group does not give any warranties or make any representations regarding the accuracy, reliability, currency, completeness or usefulness of Content. You are solely responsible for any decisions made or advice given in reliance on or as a result of the use of any Content.

 

4.4. Other responsibilities

(a) You:

(i) are responsible for access to and use of the Protecht.ERM Service by each User and Anonymous User and must ensure that each User and Anonymous User only accesses and uses the Protecht.ERM Service in accordance with the Documentation, this Agreement and all applicable laws, and only for the Customer Group’s internal business purposes in the ordinary course of its business operations;

(ii) are responsible for compliance by each Customer Group Entity and each User and Anonymous User with the Documentation, this Agreement and all applicable laws and You are liable for any breach of or failure to comply with the Documentation, this Agreement or any applicable laws by any Customer Group Entity or any User or Anonymous User;

(iii) are responsible for the accuracy, quality and legality of Your Data and of the means by which the Customer Group acquired Your Data;

(iv) must ensure that each Customer Group Entity uses commercially reasonable efforts to prevent unauthorised access to or use of the Protecht.ERM Service, and You must notify Us promptly of any such unauthorised access or use; and

(v) must provide reasonable advance notice of at least 60 days of any consulting (including advisory or analytics), training or other professional services requested under any Retainer, Service Plan or Marketplace Plan, and You acknowledge that any remaining services that are unused at the end of each subscription year of a Retainer, Service Plan or Marketplace Plan will expire at the end of that subscription year and will not be carried forward to the following subscription year of that Retainer, Service Plan or Marketplace Plan.

(b) You must ensure that each Customer Group Entity does not do or attempt to do any of the following:

(i) allow any Person, including any outsourcer, vendor, consultant or partner of the Customer Group, to access or use the Protecht.ERM Service, except as expressly permitted by this Agreement;

(ii) allow any Person (or their Personnel) that supplies, sells or re-sells any product or service in competition with the Protecht Group to access or use the Protecht.ERM Service;

(iii) sell, transfer, market, rent, lease, licence, sublicence, copy, reproduce, record, transmit, publish, distribute or otherwise commercially exploit the Protecht.ERM Service, except as expressly permitted by this Agreement or a Third Party Content Provider (in relation to their Third Party Content);

(iv) use the Content separately from (that is, except as part of) the Protecht.ERM Service;

(v) use the Protecht.ERM Service to store or transmit infringing, libellous, inappropriate, malicious, unlawful or tortious material, or to store or transmit any material in contravention of any applicable laws or any Intellectual Property Rights, Moral Rights or other rights of any Person;

(vi) store in or transmit to the Protecht.ERM Service any Malicious Code;

(vii) interfere with or disrupt the integrity or performance of the Protecht.ERM Service or its related systems or networks, including links to or integrations with Third Party Content Providers or LMSs, or the data of any other Person that is being stored in or processed by the Protecht.ERM Service;

(viii) gain any unauthorised access to or engage in any unauthorised use of the Protecht.ERM Service or its related systems or networks, including links to or integrations with Third Party Content Providers or LMSs; or

(ix) otherwise access or use the Protecht.ERM Service in contravention of any applicable laws or in a manner not expressly permitted by this Agreement.

(c) We reserve the right, without liability or prejudice to Our other rights, to disable access to the Protecht.ERM Service:

(i) if any Customer Group Entity or any User or Anonymous User breaches or fails to comply with the Documentation, this Agreement (including clauses 2.1, 4.1, 4.2 and 9.3 and this clause 4.4) or any applicable laws;

(ii) where reasonably necessary to mitigate or prevent a security threat or issue;

(iii) where reasonably necessary to comply with any applicable laws or the lawful directions of any government authority; or

(iv) if any Customer Group Entity or any of their Personnel does anything that infringes or misappropriates any Proprietary Items.

 

4.5. Other terms and conditions

(a) If a Marketplace Plan is specified in the Order Form or any SOW, you agree to be bound by the Marketplace Terms and Conditions, which will be incorporated in and form part of this Agreement.

(b) If Protecht Academy Courses are included as part of the Services then:

(i) if the Protecht Academy Courses are being delivered through Protecht’s LMS, you agree to be bound by the Protecht LMS Terms and Conditions, which will be incorporated in and form part of this Agreement; and

(ii) if the Protecht Academy Courses are being delivered through the Customer’s LMS, you agree to be bound by the Customer LMS Terms and Conditions, which will be incorporated in and form part of this Agreement.

(c) Any use of Third Party Content is conditional on Your agreement to the applicable Third Party Content Provider Terms and Conditions. If Third Party Content is used, You agree to be bound by the applicable Third Party Content Provider Terms and Conditions, which will be incorporated in and form part of this Agreement.

 

5. FEES AND PAYMENTS FOR SERVICES

5.1. Fees

In consideration for the provision of the Services, including the rights granted by Us under clause 2, You must pay to Us, within 30 days after the date of Our invoice, the following fees:

(a) the once-off Implementation Fee, payable on the Commencement Date or as otherwise specified in the Order Form;

(b) the Annual Subscription Fees, payable annually in advance during the Term, commencing on the Commencement Date and then on each anniversary of the Commencement Date, or as otherwise specified in the Order Form;

(c) the Additional Fees, payable in advance or as otherwise specified in the Order Form or any SOW; and

(d) any other fees specified in the Order Form or any SOW, or as otherwise agreed in writing by the parties from time to time.

 

5.2. Reimbursable expenses

In addition, You must reimburse Us, on a monthly basis within 30 days after the date of Our invoice, for the cost of all pre-approved reasonable out-of-pocket expenses incurred by Us in providing the Services, including travel and living expenses, courier charges and printing costs.

 

5.3. Annual price adjustment

The Annual Subscription Fees, and any other fees or rates agreed in writing by the parties from time to time, will be automatically increased each year on each anniversary of the Commencement Date at a rate determined by Us but not to exceed 7%.

 

5.4. Payments

You must pay all amounts payable to Us under this Agreement by direct credit to Our nominated bank account as specified in Our invoices, or as otherwise notified by Us to You.

 

5.5. Taxes

Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount will be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

 

5.6. Overdue charges

Subject to clause 5.8, if any payment is not received from You by the due date, then at Our discretion, such payment may accrue late interest at the rate of 1.5% or the maximum rate permitted by law, whichever is lower, per month of the outstanding balance, compounding monthly, from the date such payment was due until the date paid.

 

5.7. Suspension

Subject to clause 5.8, we reserve the right to suspend the Services, including access to and use of the Protecht.ERM Service, if any of Your payments to Us are more than 1 Month overdue. We will give You at least 7 days’ prior notice that Your account is overdue, before suspending the Services.

 

5.8. Payment disputes

We will not exercise Our rights under clause 5.6 (Overdue charges) or 5.7 (Suspension) if You are reasonably disputing the applicable charges in good faith and are reasonably cooperating diligently to resolve the dispute.

 

6. AVAILABILITY

6.1. Downtime

(a) We will use commercially reasonable efforts to provide at least 8 hours prior written notice to You of any scheduled or routine Downtime (“Scheduled Downtime”) and will use commercially reasonable efforts to limit Scheduled Downtime to a time outside of Business Hours.

(b) We will use commercially reasonable efforts to ensure the Protecht.ERM Service is available on a continuous basis and meets a service level availability target of 99.5% during Business Hours, excluding the Downtime exceptions in clause 6.3.

(c) You must promptly notify Us of any disruptions of access to the Protecht.ERM Service, other than the Scheduled Downtime notified to You under clause 6.1(a) ("Non-Scheduled Downtime").

 

6.2. Non-Scheduled Downtime credits

Subject to clauses 6.3 and 6.4, We will reimburse You for Non-Scheduled Downtime in the form of credits in accordance with Item 7 of the Schedule. Subject to clause 10.3, payments of such credits will be Your sole and exclusive remedy in respect of any Non-Scheduled Downtime.

 

6.3. Exceptions

Despite clause 6.2, We are not responsible or liable to reimburse You for any Downtime arising from any one or more of the following:

(a) faults caused by any Customer Hardware, Customer Software, Customer Internet Connection or any of Your other equipment, applications, networks, systems or gateways, or the acts or omissions of any Customer Group Entity or any of their respective Personnel, or the acts or omissions of Your internet service providers, data exchange carriers or other third party suppliers of products or services;

(b) where access to the Protecht.ERM Service is suspended under clause 5.7 or where access to the Protecht.ERM Service is disabled under clause 4.4(c);

(c) attacks by Malicious Code, except to the extent that attack could have been prevented by Us complying with Our security obligations under this Agreement;

(d) Scheduled Downtime, as notified to You in accordance with clause 6.1(a);

(e) emergency maintenance of the Protecht.ERM Service or its related systems or networks, including links to or integrations with Third Party Content Providers or LMSs, to respond to security threats, of which we will give you as much notice as possible in the circumstances;

(f) occurrence of any Force Majeure Event;

(g) disruptions to or outages of any communications, energy or other utility networks or facilities, including outages on the internet; or

(h) supply chain disruptions, including any failure by a third party supplier of products or services (including the Third Party Hosting Provider) to perform its supply obligations.

 

6.4. Credit claim

(a) Your entitlement to a credit for Non-Scheduled Downtime under clause 6.2 will be subject to the following conditions:

(i) You must make a written application to Us for credit, which must include the dates, times and description of the Non-Scheduled Downtime in respect of which such application is made (“Credit Application”);

(ii) the Credit Application must be provided to Us within 90 days after the end of the Month in which the relevant Non-Scheduled Downtime occurred; and

(iii) Our verification and calculation of the Non-Scheduled Downtime in the Credit Application, based solely on Our own measurements and records, which will be taken to be conclusive and final.

(b) Credits in respect of a Credit Application, as determined by Us under clause 6.4(a)(iii), will be applied against Our next invoice.

(c) If We dispute a Credit Application, You are not entitled to any credits pending the resolution of the dispute.

(d) Notwithstanding anything to the contrary herein, the total amount credited to You in any relevant Month will not exceed the total of one twelfth (1/12th) of the Annual Subscription Fee paid by You for that year

 

7. INDEMNIFICATION, WARRANTIES AND LIMITATIONS

7.1. Force Majeure

Neither party will be liable for, nor will it be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (excluding payment obligations) as a result of a Force Majeure Event, provided that the other party is notified of the Force Majeure Event and its expected duration.

 

7.2. Mutual indemnity

Each party indemnifies the other party and its Affiliates from and against all losses, liabilities, damages, costs and expenses (including taxes and reasonable legal expenses) suffered or incurred by any of them, whether in contract, tort (including negligence) or otherwise, arising out of or in connection with:

(a) any fraudulent or criminal act or omission of the indemnifying party or any of its Affiliates or their respective Personnel; and

(b) any infringement or misappropriation of the Intellectual Property Rights of the other party or any of its Affiliates, including any unauthorised use of any Proprietary Items, by the indemnifying party or any of its Affiliates or their respective Personnel.

 

7.3. Third party claims

(a) Subject to clause 7.3(c), We will defend the Customer Group against any claim, demand, suit, or proceeding made or brought against any Customer Group Entity by a third party alleging that access to or use of the Protecht.ERM Service by Users or Anonymous Users in accordance with the Documentation and this Agreement infringes or misappropriates the Intellectual Property Rights or Moral Rights of that third party (but excluding any claim, demand, suit or action to the extent it relates to Your Data or Third Party Content or Your configuration of the Protecht.ERM Service) (a "Claim Against You"), and will indemnify the Customer Group from and against any damages, costs and expenses (including reasonable legal expenses) finally awarded by a court of competent jurisdiction against any Customer Group Entity as a result of, or for any amounts paid by any Customer Group Entity under a court-approved settlement of, a Claim Against You, provided that You:

(i) do not admit liability for the Claim Against You;

(ii) promptly give Us written notice of the Claim Against You;

(iii) give Us sole control of the defence and settlement of the Claim Against You at Our expense (provided that We may not settle any Claim Against You unless the settlement unconditionally releases the Customer Group of all liability); and

(iv) provide to Us all reasonable assistance, at no cost to You.

(b) In the event of a Claim Against You, or if We reasonably believe the Protecht.ERM Service may infringe or misappropriate the Intellectual Property Rights or Moral Rights of a third party, We may at Our discretion and at no cost to You:

(i) modify the Protecht.ERM Service so that it no longer infringes or misappropriates;

(ii) obtain a right for the continued use of the Protecht.ERM Service by the Customer Group in accordance with this Agreement; or

(iii) terminate Your User subscriptions for the Protecht.ERM Service upon 90 days written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

(c) You will defend the Protecht Group against any claim, demand, suit or proceeding made or brought against any Protecht Group Entity by a third party (including any User or Anonymous User, or any customer, supplier, regulator, Personnel or other stakeholder of the Customer Group) alleging that:

(i) access to or use of the Protecht.ERM Service by Users or Anonymous Users that is not in accordance with the Documentation and this Agreement;

(ii) Your configuration of the Protecht.ERM Service; or

(iii) Your Data or Third Party Content,

infringes or misappropriates the Intellectual Property Rights, Moral Rights or other rights of that third party, creates a cause of action by that third party against a Protecht Group Entity, or contravenes any law (including that Your Data or Third Party Content is illegal, malicious, defamatory, offensive or otherwise inappropriate) (a "Claim Against Us"), and will indemnify the Protecht Group from and against any damages, costs and expenses (including reasonable legal expenses) finally awarded by a court of competent jurisdiction against any Protecht Group Entity as a result of, or for any amounts paid by any Protecht Group Entity under a court-approved settlement of, a Claim Against Us; provided that We:

(i) do not admit liability for the Claim Against Us;

(ii) promptly give You written notice of the Claim Against Us;

(iii) give You sole control of the defence and settlement of the Claim Against Us at Your expense (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases the Protecht Group of all liability); and

(iv) provide to You all reasonable assistance, at no cost to Us.

This clause 7.3 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party and their Affiliates for any type of claim described in this clause 7.3.

 

7.4. Limitation of liability

(a) Nothing in this Agreement limits or excludes the liability of a party for:

(i) fraud or fraudulent misrepresentation;

(ii) personal injury or death caused by negligence;

(iii) a Claim Against You or a Claim Against Us (which is as set out in clause 7.3);

(iv) any fees payable by You under this Agreement, including the Annual Subscription Fees, any Implementation Fee and any Additional Fees;

(v) infringement or misappropriation of Proprietary Items; and

(vi) any liability to the extent it cannot be excluded or limited by applicable law.

(b) Subject to clause 7.4(a), the total aggregate liability of each party and their Affiliates and their respective Personnel in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement and associated SOWs is limited to the total fees paid during the 12 months immediately preceding the date on which the liability arose.

Subject to clause 7.4(a), neither party nor their Affiliates or their respective Personnel are liable whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise for any (i) loss of profits or revenue, (ii) loss of business, (iii) loss of business opportunity, (iv) depletion of goodwill and/or similar loss, (v) loss or corruption of data or information, (vi) pure economic loss, or (vii) special, indirect or consequential losses, costs, damages, charges or expenses however arising under or in connection with this Agreement.

 

7.5. Disclaimer and exclusions

(a) Except as expressly provided by this Agreement, and to the maximum extent permitted by applicable law:

(i) neither party gives any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied conditions, warranties and rights, including any warranties of merchantability, satisfactory quality, accuracy, non-infringement or fitness for a particular purpose, to the maximum extent permitted by applicable law; and

(ii) without limiting clause 7.5(a)(i), the Protecht.ERM Service is provided to You on an "as is" basis and We do not warrant that (A) the Protecht.ERM Service and its related systems and networks, including links to and integrations with Third Party Content Providers and LMSs, will be uninterrupted or error-free, (B) the Protecht.ERM Service, the Software, Documentation or Content, or the information obtained by the Customer Group through the Protecht.ERM Service will meet its requirements, or (C) the Protecht.ERM Service and its related systems and networks, including links to and integrations with Third Party Content Providers and LMSs, will be completely secure all of the time and free from any weakness in the computational logic (for example, code) found in software or hardware components that when exploited, results in a negative impact to confidentiality, integrity, or availability.

(b) To the maximum extent permitted by applicable law, all Our liability, in respect of a breach of a condition, warranty or right implied by law, or any statutory guarantee, that may not by law be excluded by agreement, is limited to one or more of the following at Our election:

(i) if the breach relates to goods: at Our discretion either the repair, replacement or re-supply of the goods, or the cost of repairing, replacing or re-supplying the goods; and

(ii) if the breach relates to services: at Our discretion either the supply of the services again, or the cost of having the services supplied again.

(c) To the maximum extent permitted by applicable law, all claims against any Protecht Group Entity must be notified to Us in writing within 90-days after the date the cause of action arises and any claims made after the 90-day period are strictly excluded and will not be considered.

(d) To the maximum extent permitted by applicable law, the Protecht Group is not responsible for, and disclaims all liability for, the accuracy, reliability, currency, completeness or usefulness of Content, or for any decisions made or advice given in reliance on or as a result of the use of any Content.

(e) To the maximum extent permitted by applicable law, the liability of either party to the other party, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise in connection with this Agreement, for any loss, liability, damage, cost or expense will be reduced to the extent that the other party contributed to that loss, liability, damage, cost or expense. In addition, in no event will the Protecht Group have any liability under this Agreement for any performance problem, claim of infringement or other matter to the extent attributable to (i) any unauthorised or improper access to or use of the Protecht.ERM Service by Users or Anonymous Users, (ii) any third party products of services used by You in conjunction with the Protecht.ERM Service, (iii) use of any industry standard protocol in the Protecht.ERM Service, or (iv) any breach of this Agreement by any Customer Group Entity or any User or Anonymous User.

 

 

8. CONFIDENTIALITY, YOUR DATA, DATA PROTECTION AND INFORMATION SECURITY

8.1. Confidentiality

(a) The Receiving Party must, at all times, use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and agrees:

(i) not to disclose or use any Confidential Information of the Disclosing Party for any purpose other than for the purpose of performing its obligations under this Agreement; and

(ii) except as otherwise authorised by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ Personnel who need such access for the purpose of performing its obligations under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Agreement.

Subject to clause 8.1(b), neither party may disclose the terms of this Agreement to any third party (i) other than its Affiliates and their legal counsel and accountants, or (ii) without the other party’s prior written consent.

(b) The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled to do so by law or any regulator acting with lawful authority, provided the Receiving Party gives the Disclosing Party prior notice of that compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law or any regulator acting with lawful authority to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In this provision, a reference to “law or any regulator acting with lawful authority” means the law of, or any regulator acting with lawful authority in, any jurisdiction in which the Receiving Party or any of its Affiliates is operating.

(c) You agree that, in relation to any obligation to assist, co-operate or provide information or access to documents, including in connection with any right of audit or inspection, under this Agreement:

(i) that right or obligation is qualified in relation to any supplier by the terms of our agreement with that supplier;

(ii) We are only obliged to disclose information or documents to the extent that information or those documents are reasonably available to Us and You do not otherwise have access to that information or those documents;

(iii) We have no obligation to disclose information or documents relating to any other customer or where disclosure would contravene any law or be in breach of any obligation of confidence;

(iv) some information and documents may be available for inspection only (not copy) at Our premises and in summary form only or through Our security webpage; and

(v) all information and documents will be disclosed on a strictly confidential “need to know” basis.

8.2. Your Data

(a) We acknowledge that the title to Your Data will remain exclusively with You.

(b) We will:

(i) not (A) modify Your Data, (B) disclose Your Data except as compelled by law or any regulator acting with lawful authority in accordance with clause 8.1(b) or as expressly permitted under this Agreement or in writing by You, or (C) access or use Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters, or as otherwise permitted under this Agreement;

(ii) as soon as reasonably practicable after receipt (but if and only to the extent legally permitted), notify You in writing if We receive any request from any Authority in respect of Your Data, and at Your cost and expense, provide all information, cooperation and assistance reasonably required to enable Us to comply with any such request; and

(iii) as soon as reasonably practicable after becoming aware (but if and only to the extent We are legally permitted to do so), notify You of any actual or potential investigations by any Authority in relation to Your Data, and at Your cost and expense, provide all information, cooperation and other assistance reasonably required in connection with that actual or potential investigation.

(c) In the event of any loss or damage to Your Data, Your sole and exclusive remedy against Us will be for Us to use reasonable commercial efforts to restore the lost or damaged data from the latest back-up of such data maintained by Us in accordance with clause 8.4(d). We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party, unless that third party is appointed by Us as a sub-processor, in which case We will remain liable in accordance with the DPA.

(d) You agree that the Protecht Group may use Your Data in an aggregated, de-identifiable form for the purposes of analytics, the creation of product utilization insights, and to improve and develop the Services. This clause 8.2(d) will survive expiry or termination of this Agreement.

 

8.3. Data protection

Each party undertakes to process Personal Data in accordance with and otherwise comply with their obligations under the DPA, the terms of which are incorporated into and form part of this Agreement.

 

8.4. Information security

Without limiting any other provision of the Agreement, We will:

(a) implement and maintain appropriate administrative, physical and technical security safeguards in the provision of the Services at least consistent with the requirements of ISO 27001 for the protection, security, confidentiality and integrity of Your Data while it resides in the Protecht.ERM Service, which is hosted by Our Third Party Hosting Provider. We will maintain appropriate governance and oversight arrangements of Our Third Party Hosting Provider at least consistent with the requirements of ISO 27001. However, You remain liable for granting and limiting access to Your Data, and You must undertake technical and operational safeguards to protect the integrity of access to Your Data and we encourage You to regularly engage Your own experts to undertake penetration testing of Your systems and hardware as We are not liable for any unauthorised access originating from or conducted through Your systems and hardware;

(b) regularly test Our systems and procedures, including penetration testing by accredited third parties and permit such security audits as may be lawfully required by any Authority at Your cost and expense on a time and materials basis at Our then current published rates for Additional Services;

(c) at Your written request, but subject to clause 8.1(c):

(i) provide You with access through Our security webpage to relevant details of Our information security program and information security posture; and

(ii) respond to reasonable and relevant queries that are not addressed by the resources available through Our security webpage.

We may, at Our discretion, charge You and You agree to pay Us a fee for that assistance calculated on a time and materials at Our then current published rates for Additional Services; and

(d) use commercially reasonable efforts to meet the backup and disaster recovery objectives specified in Item 5 of the Schedule.

 

9. OUR PROPRIETARY ITEMS

9.1. Proprietary Items

You acknowledge that the Proprietary Items are proprietary to the Protecht Group (or, in the case of items licenced to the Protecht Group, its licensors) and have substantial commercial value to the Protecht Group (and, in the case of items licenced to the Protecht Group, its licensors). All right, title and interest in and to and all other ownership rights in all Proprietary Items remain exclusively with the Protecht Group (and, in the case of items licenced to the Protecht Group, its licensors), even with respect to such items that were created by the Protecht Group specifically for or on behalf of the Customer Group. You acknowledge that the restrictions in this Agreement are reasonable and necessary to protect the legitimate business interests of the Protecht Group (and, in the case of items licenced to the Protecht Group, its licensors). You acknowledge that this Agreement does not grant the Customer Group any rights other than as expressly set out in this Agreement. You agree to notify Us in writing if the Customer Group becomes aware or any actual or suspected breach of this Agreement or unauthorised use of any Proprietary Items.

 

9.2. Disclosure and use restrictions

You must ensure that each Customer Group Entity and their Personnel hold all Proprietary Items in their possession, in strict confidence. You must ensure that each Customer Group Entity and their Personnel take all steps reasonably necessary to preserve the confidentiality of those Proprietary Items. You must ensure that no Customer Group Entity or any of their Personnel does anything that infringes or misappropriates any Proprietary Items. You must ensure that no Customer Group Entity or any of their Personnel, directly or indirectly, communicates, publishes, displays, loans, gives or otherwise discloses any Proprietary Item to any Person, or permits any Person to have access to or view or come into possession of any Proprietary Item, except as authorised under this Agreement. You are liable for any breach of this Agreement by any Person who obtains access to or possession of any Proprietary Item from or through any Customer Group Entity or any of their Personnel.

9.3. Further use restrictions

You must not, and You must not permit any other Person to do or attempt to do any of the following:

(a) use any Proprietary Items or any Confidential Information of the Protecht Group for any purpose or in any manner not specifically authorised by this Agreement;

(b) modify, alter, adapt, translate or create derivative works based upon or inspired by the Software, Documentation or Content, or combine or merge any part of the Software, Documentation or Content with or into any other software, documentation or content;

(c) refer to or otherwise use any Proprietary Item or any Confidential Information as part of any effort to develop software, documentation, content or materials having functional attributes, visual expressions or other features substantially similar to those of the Software, the Documentation, the Content or any other Materials of the Protecht Group;

(d) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Proprietary Item;

(e) sell, transfer, market, rent, lease, license, sublicense, copy, reproduce, record, transmit, publish, distribute or otherwise commercially exploit any Proprietary Item, or grant to any Person, including any outsourcer, vendor, consultant or partner, any right to do any of these things, except as expressly permitted by this Agreement;

(f) reverse engineer, decrypt, decompile, disassemble, create, recreate or otherwise discover the source code of the Software, except to the extent You may be expressly permitted to decompile under applicable law; or

(g) use the Protecht.ERM Service to conduct any type of service bureau or time-sharing operation.

 

9.4. Brand

All trademarks, service marks, trade names, and logos, including page headers, custom graphics, button icons, and scripts (collectively, the “Trademarks”) used and displayed on or in the Protecht.ERM Service are registered and unregistered trademarks, service marks and/or trade dress of the Protecht Group or its licensors, and You must not, and You must not permit any other Person to, copy, imitate or use the Trademarks, in whole or in part, for any purpose. No license or other right to use any Trademark used or displayed on or in the Protecht.ERM Service is granted to You.

 

10. TERMINATION

10.1. Term

Subject to termination under this clause 10:

(a) the minimum term of this Agreement is 3 years, commencing on the Commencement Date (“Initial Period”);

(b) at least 90 days prior to the end of the Initial Period or any Extension Period, the parties will review the terms of this Agreement and either party may terminate this Agreement effective at the end of the Initial Period or Extension Period by not less than 90 days' written notice to the other party; and

(c) if neither party terminates this Agreement in accordance with clause 10.1(b), the Agreement will automatically extend for further periods of 1 year on the same terms, subject to the increase in fees in clause 5.3, or as otherwise agreed in writing (each period of 1 year being an "Extension Period").

 

10.2. Termination for convenience

(a) You may terminate this Agreement, without cause, on 90 days’ notice to Us, subject to You paying to Us the amount of unpaid Annual Subscription Fees for the remainder of the Term (“Early Termination Fee”).

(b) Following receipt of a notice to terminate in accordance with Clause 10.1(b), We will promptly issue You with an invoice for the Early Termination Fee, which must be paid in full as a condition to the termination of the Agreement. If the Early Termination Fee is not paid within the notice period in clause 10.2(a), You may not exercise this right and the parties agree the Agreement will continue in full force and effect, except that clause 10.2(a) will not apply and You will not have the right to terminate on this basis for the duration of the Term.

(c) The parties agree that the payment of the Early Termination Fee is not a penalty but a genuine pre-estimate of the loss likely to be suffered by Us in the event that You terminate the Agreement without cause.

 

10.3. Termination for cause

(a) If either party:

(i) breaches any material term of this Agreement which is incapable of remedy;

(ii) breaches any material term of this Agreement (including failure to pay any amount when due under this Agreement) and does not cure the breach within 30 days after receipt of written notice from the other party describing the breach in detail and requesting that it be rectified; or

(iii) becomes Insolvent or suspends or ceases (or threatens to suspend or cease) to carry on all or a substantial part of its business or its financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy,

then, in addition to any other rights it has under law or equity, the other party may at its discretion terminate this Agreement by written notice with immediate effect.

(b) If any Non-Scheduled Downtime occurs for more than 120 hours in a Month, then You may terminate this Agreement by written notice with immediate effect.

(c) If a Force Majeure Event prevents either party from performing its obligations under this Agreement for more than 90 days, the other party may terminate this Agreement by written notice with immediate effect.

 

10.4. Effect of termination

On expiry or termination of this Agreement:

(a) each party will retain all rights and remedies that have accrued before expiry or termination and, in particular, You will remain liable to pay all amounts due and payable by You under this Agreement;

(b) You must discontinue all access to and use of the Protecht.ERM Service by Users and Anonymous Users;

(c) You must promptly return to Us or destroy all Proprietary Items and all Our Confidential Information then in the possession or control of the Customer Group; and

(d) subject to payment of all amounts due and payable by You under this Agreement, You may, within 30 days after the effective date of expiry or termination of this Agreement:

(i) download a file in comma separated value (.CSV) format of Your Data; and

(ii) request that We make available to You Your attachments and other documents in their native format so that You may download them,

using standard export functionality available in Protecht.ERM, at no cost to You. If there is any issue with doing so and You request Our assistance to resolve that issue, or You request an alternative format, We may, at Our discretion, charge You and You agree to pay Us a fee for that assistance calculated on a time and materials at Our then current published rates for Additional Services; and

(e) We will have no obligation to store, process or return any of Your Data after the period of 30 days after the effective date of expiry or termination of this Agreement and will thereafter, unless and to the extent required to retain by applicable law, delete all of Your Data in Protecht.ERM Service or otherwise in Our possession or under Our control.

This clause 10.4 will survive expiry or termination of this Agreement.

 

10.5. Survival following termination

The provisions of Clauses 5, 7, 8, 9, 10, 11 and 12 will survive expiry or termination of this Agreement, whether under this clause 10 or otherwise.

 

11. GOVERNING LAW, JURISDICTION AND NOTICES

11.1. Governing law and jurisdiction

(a) This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of New South Wales without regard to any conflict of law provisions and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.

(b) Each party irrevocably submits to the exclusive jurisdiction of the Courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objectives to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

 

11.2. Notices

(a) All notices, consents and other communications under or regarding this Agreement must be given in writing. If a notice is given by post, it will be deemed to have been received on the earlier of:

(i) the date of actual receipt;

(ii) 3 Business Days if posted within Australia; and

(iii) 10 Business Days if posted outside Australia by prepaid ordinary post, or the first Business Day if sent by a reputable overnight delivery service.

(b) Any notice may be given by email and is taken to be received at the time sent unless the sender is notified, by a system or person involved in the delivery of the email, that the email was not successfully sent.

(c) All notices to You must be sent to Your Address as specified in the Order Form. All notices to Us must be sent to Our Address as specified in the Order Form. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this clause 11.

 

12. GENERAL PROVISIONS

12.1. Compliance with laws

Each party is responsible for complying with all laws applicable to that party in connection with this Agreement. Neither party is responsible to the other party for the other party’s breach of applicable laws.

 

12.2. Export compliance

The Services and other technology We make available, and derivatives thereof may be subject to export laws of various jurisdictions. Each party represents that neither it nor any of its Affiliates is listed on any embargoed, sanctioned or denied-party list, including on such lists of Australia, New Zealand, the United Kingdom, the European Union, the United States, Canada or the United Nations. You must not permit Users or Anonymous Users to access or use the Protecht.ERM Service from any such embargoed or sanctioned country or in contravention of any applicable export law.

 

12.3. Anti-corruption

No Customer Group Entity or any of its Personnel has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Protecht Group Entity or any of its Personnel in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us at info@protecht.com.au.

 

12.4. Modern slavery

We will not knowingly engage in any conduct or omission which may contravene any Modern Slavery Laws and, subject to Our obligations and requirements of confidentiality, We will provide You with any relevant information or documentation reasonably required solely for the purpose of enabling You to comply with Your obligations under Modern Slavery Laws.

 

12.5. Right to use Your logo and name

We have a right to use Your logo and name in any promotional material, newsletters or blogs, but only with Your prior written approval and to the extent of naming You as a user of the Services.

 

12.6. Relationship of the parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

 

12.7. Parties and assigns

This Agreement will bind, benefit and be enforceable by and against each party and their respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights under this Agreement, nor delegate any of its obligations under this Agreement, without the prior written consent of the other party, which consent will not be unreasonably withheld in the case of an assignment by Us to a purchaser of, or successor to, all or substantially all of Our business.

 

12.8. Third-party beneficiaries

Except for the Affiliates and licensors of each party (where expressly indicated), and the successors and permitted assigns of each party, and to the maximum extent permitted by appliable law, this Agreement does not confer rights on any other Person or give rise to any rights (including under any applicable law) to enforce any term of this Agreement.

 

12.9. Dispute resolution

Both parties will attempt to resolve any disputes informally by either party referring the matter in dispute to their authorised representative within five Business Days after the dispute occurring. If the parties' representatives are unable to resolve the dispute within three Business Days after reference to them, then within one Business Day after then, both parties will refer the dispute to the member of their senior leadership team with executive responsibility. The parties will use their best efforts to avoid litigation; however, this provision will not limit the ability of either party to seek interlocutory relief at any time, should that be necessary.

 

12.10. Entire understanding

This Agreement, including all schedules to this Agreement and all terms and conditions expressly incorporated in and forming part of this Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. If there is any conflict or inconsistency between the provisions in the body of this Agreement and any schedules to this Agreement, the provisions in the body of this Agreement will prevail to the extent of that conflict or inconsistency. If there is any conflict or inconsistency between this Agreement and any terms and conditions expressly incorporated in and forming part of this Agreement, this Agreement will prevail to the extent of that conflict or inconsistency. Any written, printed or other materials which We provide to You that are not included in the Documentation are provided on an “as is” basis without warranty, and solely as an accommodation to You.

 

12.11. Waiver

No waiver of any breach of this Agreement will be effective unless in writing and signed by an authorised representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.

 

12.12. Severability

A determination that any provision of this Agreement is invalid or unenforceable will not affect the other provisions of this Agreement. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will as to that jurisdiction only be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement which are self-sustaining and capable of separate enforcement without regard to the read down or severed provision in that jurisdiction are and will continue to be valid and enforceable in accordance with their terms.

 

12.13. Amendment

This Agreement can only be amended by an agreement in writing clearly setting out that it amends this Agreement that is signed by the parties to this Agreement.

 

12.14. Execution and counterparts

This Agreement may be executed in any number of counterparts and all such counterparts taken together will be deemed to constitute one and the same instrument. Each party agrees that this Agreement may be signed by electronic means, including using DocuSign or similar document execution software.

 

SCHEDULE

Item 1: BASIC SERVICES
Nature of Services	Limits and Availability of Services
A. Service provision.	We will use all reasonable efforts during Business Hours to provision the Protecht.ERM Service within 14 days after the Commencement Date.
B. Access to, and use of, the Protecht.ERM Service.	All hours, subject to Downtime.
C. Help desk telephone assistance in relation to the use of the Protecht.ERM Service (in the nature of answering “how to” questions).	10 hours per Month during Business Hours for the first 3 months of the Initial Period, reverting to 2 hours per Month during Business Hours after the first 3 months of the Initial Period.
D. Reasonable telephone support to assist in the resolution of any technical problems or operational faults with Customer’s access to the Protecht.ERM Service.	During Business Hours as reasonably requested by Customer.
E. Data storage provided for files and attachments stored within the Protecht.ERM Service.	Data storage of up to 100 GB is included with Your subscription.

 

 

 

Item 2: ADDITIONAL SERVICES
Nature of Services	Limits and Availability of Services
A. All services set out in Item 1 of the Schedule in excess of the specified limits set out there.	Subject to available capacity, during Business Hours as reasonably requested by Customer.
B. If additional training or consulting services (including analytics or advisory services) is requested by Customer, the scope of those services will be agreed under an SOW and will be provided by Us for an additional fee calculated on a time and materials basis at Our then current published rates for Additional Services.	Subject to available capacity, during Business Hours as reasonably requested by Customer.
C. Excess data storage for files and attachments stored within the Protecht.ERM Service.	Additional data storage charge (over 100 GB): You will be charged an annual fee at the rate of $10 or $10 plus applicable Taxes for each GB in excess of 100 GB.
D. Anonymous Users.	An annual fee is payable for each register used by Anonymous Users, subject to a maximum limit of 1,000 forms per annum for each register that may be submitted by Anonymous Users. A fee is payable at the rate of $0.10 plus applicable Taxes for each form submitted in excess of this limit.

 

Item 3: IMPLEMENTATION SERVICES
Commencement	Implementation Services will commence on the date on or after the Commencement Date agreed between Protecht and the Customer.
Completion	You must notify Us of any residual issues with the Implementation Services before the date that is 60 days after the “system go-live” milestone (“Notification Deadline”). The Implementation Services will be regarded as complete on the later of: (i) the Notification Deadline, and (ii) if any residual issues notified by You to Us before the Notification Deadline have not been resolved by the Notification Deadline, when We advise You that those issues have been resolved and the Implementation Services are complete.
Modifications	Where You have elected to use Our standard (“off-the-shelf”) registers, forms and/or templates, there are no changes or modifications permitted. Where the parties have agreed to accommodate modifications to Our off-the-shelf registers, forms and/or templates, Our pricing (and hence the Implementation Fee) is based on one set of modifications by Your system administrators and another set of modifications after Your end user testing.   If You require further modifications (or additional iterations to a modification) (“Variations”) We may, at Our discretion, charge You and You agree to pay Us for Our time and materials based on the applicable rates for Additional Services.
Variations	If You request (and We agree) to any changes, modifications or iterations to Our templates or the process documented in the agreed project plan, that will be treated as a Variation and You agree to pay Us on the same basis. We are prepared to accommodate 2 iterations, being 1 draft and 1 final version of registers, reports and dashboards (within the agreed price); however, if there are more than these 2 iterations (of whatever nature) it will be a Variation.

 

 

 

Item 4: SPECIFIED CONFIGURATION
Customer Hardware	Processor: 2GHz or higher. Memory: 8GB or higher. Video Resolution: 1280x1024 or higher.
Customer Software	Currently supported versions of Microsoft Edge, Google Chrome, Safari or Firefox. Currently supported versions of Microsoft Office (Excel, Word & PowerPoint). Currently supported versions of Adobe Acrobat Reader.
Customer Internet Connection	Minimum 10 Mbps.

 

Item 5: BACKUPS AND DISASTER RECOVERY OBJECTIVES
Backups	Backup procedures will be managed by Our Third Party Hosting Provider. Daily backups will be to disk with a 30 day retention period. Backups will be stored in an alternative availability zone from the production system.
Disaster recovery	The disaster recovery site is to be located at a physically separate datacentre with recovery point objective of 5 minutes and recovery time objective of 60 minutes. The DR site will be a full mirror image of the production environment with continuous synchronisation and 5 minute latency target.

 

 

 

Item 6: SERVICE LEVEL OBJECTIVES
Priority type	Time to respond target	Resolution target	Examples
Low priority	24 hours	120 hours	Feedback Non-essential system set-up changes No compliance or cash flow Impact
Medium priority	8 Business Hours	72 hours	Notification of image/data capture issues/trends Non critical general, operational and technical enquiries
High priority	4 Business Hours	48 hours	Software issue affecting multiple Users and issues affecting business operation, which prevents a small group of Users from accessing or using the Protecht.ERM Service or where the module functionality is restricted but a feasible workaround exists
Critical priority	2 Business Hours	24 hours	Business critical issues only, which prevent the majority of Users from accessing or using the Protecht.ERM Service or where the module functionality is materially restricted with no feasible workaround

 

Item 7: NON-SCHEDULED DOWNTIME CREDITS
Downtime	Credits
Less than 4 hours	Nil
Between 4 and 24 hours	5% of one twelfth (1/12th) of the Annual Subscription Fee paid by You for that year
More than 24 hours	10% of one twelfth (1/12th) of the Annual Subscription Fee paid by You for that year