The use of the software, or software as a service product (together with any associated mobile or tablet application) known as “Impactora” (Software) and supplied documentation in respect of the Software (Material) which is owned or licensed to you by IMPACTORA PTY LTD ACN 673 812 603 (Licensor) is governed by the licence terms and conditions set out below (“Agreement”). Without limiting the ways in which you may be bound by this Agreement, clicking “I accept the terms of this Licence Agreement” (or similar wording) or using a similar mechanism indicating your acceptance, by signing a document in which you expressly agree to be bound by this Agreement (including a Software Purchase Agreement as described below), or by otherwise installing and/or using the Software, you (“you”, “Client” or “Authorised User” (as applicable)) will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.

1. SOFTWARE PURCHASE AGREEMENT
1.1 This Agreement sets out your usage rights in relation to the Software. The Software Purchase Agreement (defined below) sets out particulars of your purchase of those usage rights, including the matters described in this clause.

1.2 This Agreement is incorporated by reference into the Software Purchase Agreement. Without limiting the forgoing, the Software Purchase Agreement may constitute a Master Services Agreement between the Licensor and the Client, a purchase order form pursuant to which the Client purchases the Licence, a mobile application signup process, or other software purchase agreement which references this document and is entered by the Client and the Licensor (Software Purchase Agreement).

1.3 The Software Purchase Agreement may specify (amongst other things):
(a) the type of Licence you are granted (being either an Enterprise Licence or an Consumer Licence) (jointly referred to as Licence);
(b) the term of the Licence (being either an Evaluation Term, a Subscription Term, or on a Free Trial basis);
(c) how the Client may access and use the Software (including the applicable Licence conditions described in clause 2);
(d) any usage rights and/or usage limits in respect of the functionality of the Software;
(e) the provision of software support by the Licensor;
(f) the provision of other services by the Licensor (such as consulting, installation, and maintenance);
(g) (if applicable) that the licence be activated by licence keys which allow the use of the Software; and
(h) any other special terms governing the Licence or which are expressly stated to take precedence over a term of this Agreement.

1.4 If there is any conflict between the Software Purchase Agreement, and this Agreement, then subject to clause 1.3(h) and unless otherwise expressly specified in the Software Purchase Agreement, the provisions of this Agreement will prevail to the extent of the conflict.

2. SOFTWARE LICENCE CONDITIONS
2.1 Unless otherwise agreed to in writing by the Licensor, the Client and if applicable, its Authorised Users, may only use and access the Software to the extent permitted by this Agreement.

2.2 The Software which is licenced to the Client under this Agreement is either (as indicated in the Software Purchase Agreement):
(a) a web based software as a service application which is accessible via a website specified from time to time by the Licensor (SAAS Application); and/or
(b) a smart phone or tablet application published by the Licensor from time to time in one or more of the Apple Appstore, or any other online software distribution service (APP).

2.3 Subject to the terms of this Agreement, where the Software Purchase Agreement indicates the Client elects an Enterprise Licence, the Licensor grants to the Client, a non-exclusive, non-transferable, revocable licence:
(a) to access and use the Software and the Material online via the SAAS Application;
(b) to access and use any APP version the Software and Materials which the Licensor makes available during the Term; and
(c) to make the SaaS Application and APP versions of Software and Material available for use by specific named individual users, or a fixed number of concurrent users, who hold an individual licence to use and access the Software (each an “Authorised User”) (but only to the extent specified in the Software Purchase Agreement)
(together, Enterprise Licence). An Enterprise Licence may be granted for an Evaluation Term or a Subscription Term in accordance with the terms of the Software Purchase Agreement and clauses 3.2(a) and 3.2(c).

2.4 Subject to the terms of this Agreement, where the Software Purchase Agreement indicates the Client selects an Consumer Licence, the Licensor grants to the Client, a non-exclusive, non-transferable, revocable licence to use the APP version of the Software and Material purchased or otherwise accessed by the Client via the relevant application store (Consumer Licence). A Consumer Licence may be granted to the Client on a Trial basis under clause 3.2(b) or for a Subscription Term under clause 3.2(c). For the avoidance of doubt, a Consumer Licence does not grant the Client any right to access or otherwise use the SAAS Application.

2.5 If the Software Purchase Agreement does not nominate the licence type and or term, then the Licensor grants to the Client a Consumer Licence for a Trial Period.

2.6 The Client and its if applicable, its Authorised Users must only use the Software and Materials as permitted by this Agreement and in accordance with applicable user manuals (or similar documentation) provided by the Licensor from time to time. The Client and its if applicable, its Authorised Users must not:
(a) directly or indirectly attempt to gain unauthorised access to the Software (or its related systems or networks;
(b) use their Account (defined below) in a fraudulent or illegal manner, or email, upload or send any materials from their Account which are offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
(c) upload to the Software any viruses, malware or any other malicious software or data; or
(d) license, sublicense, sell, resell, rent, lease, deliver, transfer, assign distribute, time share, offer the Software or the Licence to any other person without the written permission of the Licensor.

2.7 Nothing in this Agreement grants the Client or its Authorised Users the right to use or access the source code for the Software.
2.8 All rights in and to the Software and Materials which are not expressly granted under this Agreement are strictly reserved by the Licensor.

3. TERM
3.1 Subject to the terms of this Agreement (including the payment of any applicable fee), the relevant Licence will be granted to the Client upon the Client entering into a Software Purchase Agreement.

3.2 The term of the Licence will be indicated in the Software Purchase Agreement and may be either:
(a) in the case of an Enterprise Licence only – granted by the Licensor for a limited time for the purpose of enabling the Client to evaluate whether the Software is fit for its required purpose, or to trial any beta version of the Software (Evaluation Term). During the Evaluation Term, the Software may have limited functionality, be in beta format or have other limitations imposed on its use by the Licensor. At the conclusion of the Evaluation Term, the Enterprise Licence will automatically terminate unless the Client enters into a Subscription Term (as defined below);
(b) in the case of Consumer Licence only – be granted for a trial period. This means you will be granted access to the mobile application for a specified limited period (as indicated within the application), allowing you to evaluate the mobile application during that period (Trial Period); or
(c) be granted on a subscription basis. That is, the Enterprise Licence or APP License will be granted for a specific period of time (as set out in the Software Purchase Agreement), which is capable of automatic renewal under clause 3.5 (Subscription Term);
(each a Term).

3.3 The Licence will commence on the date of the Software Purchase Agreement (or on such other date as specified in the Software Purchase Agreement) and shall continue for the applicable Term unless terminated or renewed in accordance with this Agreement.

3.4 At the end of the Trial Period, unless either party terminates this Agreement under clause 7.2(e) or 7.4(d), the Subscription Term will automatically commence the day after the end of the Trial Period.

3.5 Unless the Software Purchase Agreement states otherwise, at the end of each Subscription Term the Client’s Licence will automatically renew for a new Subscription Term of the same duration (each a Renewal Term). However, the Client or the Licensor may provide written notice to the other party of their intention not to renew and to terminate this Agreement, with such notice to be provided no less than 30 days prior to the then current Term. Where notice is given under this clause 3.5, access to the Software will continue until the end of the then current Term following which the provisions of clause 7.5 will apply. For the avoidance of doubt, no refunds will be given for the pro-rated amount remaining from the date of notice until the end of the then current term, unless required under this Agreement or by law.

3.6 On renewal, the Client acknowledges that the Licensor may charge a new licence fee or other amount specified in the Software Purchase Agreement (or if not specified, then the Licensor’s standard fee for the type and extent of rights granted) in respect of the Renewal Term.

3.7 The Client acknowledges that the Licensor is under no obligation to renew a Subscription Term or agree to grant a renewal to the Client after request from the Client.

4. ENTERPRISE CLIENTS: AUTHORISED USERS
4.1 This clause 4 applies only to Clients who subscribes for Enterprise Licences and their Authorised Users.

4.2 Subject to the terms of this Agreement, the Software may be accessed and used by:
(a) system administrators appointed by the Client from time to time (Administrators); and
(b) other personnel of the Client (General Users)
(jointly, Authorised Users). Administrators will have the right to access additional Software functionality described in the Software Purchase Agreement or otherwise which the Licensor makes generally available to Administrators from time to time. An Authorised User must be an employee of, consultant or subcontractor to the Client. An Authorised User must not be another legal entity (including the Client’s related bodies corporate or any other organisation (who will need to purchase their own Licence). However, the parties may as a special condition specify in a Software Purchase Agreement that the Client’s related bodies corporate or personnel of such related bodies corporate be permitted to act as Authorised Users.

4.3 The number of Administrators and General Users who may use the Software will be as specified in the Software Purchase Agreement. The Client must not exceed these usage limits.

4.4 If you are entering into this Agreement as an Authorised User, then:
(a) you agree that your use of the Software must not exceed the rights granted to the Client under this Agreement;
(b) you will only access functionality of the Software which is permitted for your type of Authorised User, as either set out in this Agreement or as specified by the Licensor from time to time;
(c) you will not do any act, or cause any omission that places the Client in breach of this Agreement or the Software Purchase Agreement;
(d) you are binding the Client to this Agreement as agent of the Client (to the extent the Client is not already bound);
(e) the obligations of the Client as set out in this Agreement in relation to the Client’s or its Authorised Users’ use of the Software will also apply to you personally (as if you were named as the Client); and
(f) the rights granted to the Licensor under this Agreement in respect of, or against, the Client, will also be granted by you to the Licensor (as if you were the Client).

4.5 The Client shall be responsible for each use of the Software by its Authorised Users. Each act, omission or negligence of an Authorised User in relation to its use of the Software, or this Agreement, shall be an act, omission or negligence of the Client. The Client indemnifies the Licensor against any and all loss, cost, expense or damage suffered or incurred by the Licensor, as a result of any and all uses of the Software by the Client or its Authorised Users, and from any breach of this Agreement or any Third Party Agreement (that term is defined below) caused by it or its Authorised Users.

5. USER ACCOUNTS
5.1 Depending on the functionality of the Software, the Client and (if applicable some or all its Authorised Users) may be required to set up an individual user account (Account) to use and access the Software. The Licensor may, from time to time, amend or place restrictions on the requirements needed to create an Account.

5.2 The Client (and if applicable their Authorised Users):
(a) must keep their login details confidential and must not share their login details with any other person;
(b) may only use the Software personally and may not authorise or sublicence any other person to use the Software on their behalf; and
(c) may only access and use the Software from one device at any one time (unless functionality otherwise permits).

5.3 The Client (and if applicable, each Authorised User) agrees:
(a) that each Account (whether the Client’s own or if applicable, their Authorised User’s Account) will be created using the Licensor’s online signup process, or any other method specified by the Licensor from time to time (which may include Authorised Users being sent a unique signup link to use the Software);
(b) to keep confidential and secure, and to ensure that that they (and if applicable each Authorised User) keeps confidential and secure, any username or password used to access the Account;
(c) that the Client (and if applicable, each Authorised User) will only use their Account for the purposes of using the Software in accordance with this Agreement and for no other purpose; and
(d) to be responsible for all uses of the Client’s Account by its Authorised Users, and for each Authorised User’s use of their Account (if applicable).

5.4 The Client (and if applicable, each Authorised User) warrants:
(a) that all information provided by the Client to the Licensor in the setup of its and each Authorised User’s Account (if applicable) is true and correct in every detail;
(b) to only use the Software in a manner and in accordance with all relevant laws (which include without limitation, all applicable consumer laws and Privacy Laws, together with and associated regulations and industry codes and whether enacted by the Commonwealth, or any applicable State or Territory) (Applicable Laws);
(c) only upload to the Software information and material which under any Applicable Law, the Client or its Authorised Users (if applicable) are legally entitled to obtain, and to only use uploaded information and material to the extent they are legally permitted to do so;
(d) only use the Software in accordance with the permitted uses and functionality described in its user manuals (or similar documentation) from time to time;
(e) adhere to the Licensor’s policies, procedures and codes of conduct in effect from time to time which is provided to the Client (and if applicable) its Authorised Users from time to time;
(f) not use their Account or the Software in a fraudulent or illegal manner, or email, upload or send any materials from their Account or the Software (including via any chat functionality in the Software) which is or may be considered offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to any person (as determined by the Licensor in its sole discretion).

5.5 Without limiting the Licensor’s rights, the Client and (if applicable) each Authorised User acknowledges and agrees that the Licensor may suspend usage of the Client’s and/or an Authorised User’s Account at any time in its sole and absolute discretion, if the Licensor considers that:
(a) the Client or the Authorised User is or may be in breach of this Agreement or any Applicable Law; or
(b) doing so is required for urgent maintenance of the Software.

6. FEES & EXPENSES
6.1 The Client agrees to pay the Licensor the fees and expenses by the due date and method specified in any invoice (or within 14 days of the date of any invoice if no due date is specified), or in accordance with any payment terms otherwise agreed in Software Purchase Agreement.

6.2 In the case of an APP Licence – unless either party terminates this Agreement under clause 7.2(e) or 7.4(d) before the expiry of the Trial Period, Fees will be automatically deducted from the Client’s nominated credit (or debit card) the day following the end of the Trial Period, and will automatically recur on a monthly or annual basis (as applicable) thereafter until termination or expiry of this Agreement.

6.3 If the Client fails to pay any amount when due, the Licensor may in its discretion do one or more of the following:
(a) suspend access to the Software until all outstanding payments are received in full;
(b) terminate this Agreement under clause 7.2(a);
(c) charge interest on the unpaid amount, calculated at the official cash rate set by the Reserve Bank of Australia plus 10%, calculated daily and compounding monthly, from the due date until full payment is made

6.4 Apart from where expressly stated to the contrary, all amounts payable to the Supplier is expressed to be exclusive of GST. The Client agrees to pay the amount of any GST to the Supplier, such that after deduction of GST, the Supplier receives no less than the original amount payable. The amount of any GST will be payable at the same time as the fees and expenses.

7. TERMINATION
7.1 This Agreement and the Licence will automatically expire and terminate:
(a) if an Enterprise Licence is granted for an Evaluation Term, then at the end of the applicable Evaluation Term unless extended by agreement with the Licensor; or
(b) if a Subscription Term is purchased, then at the end of the applicable term if the Enterprise Licence or Consumer Licence (as applicable) is not renewed and terminated by either party under clause 3.5.
For the avoidance of doubt, if a Enterprise Licence automatically terminates, then this Agreement also terminates in respect of each Authorised User (to the extent applicable).

7.2 This Agreement and the Client’s (or its Authorised User’s rights) under this Agreement may be terminated at any time by the Licensor:
(a) if any fees or expenses remain unpaid for more than 7 days after their due date;
(b) immediately with notice, in event the Client or any of its Authorised Users (if applicable) breach any Applicable Law;
(c) if the Client, or any of its Authorised Users (if applicable), is in breach of this Agreement, the Software Purchase Agreement or a Third Party Agreement (as that term is defined in clause 12.1) and the Client fails to remedy the breach after receiving 14 days written notice from the Licensor; or
(d) the Client becomes insolvent, bankrupt, is wound up, or has an administrator, liquidator or receiver appointed over it or its assets; or
(e) where a Consumer Licence is granted for a Trial Period – at any time during the Trial Period with or without notice on the Client.

7.3 Without limiting the Licensors rights under clause 7.2, an individual Authorised User’s right to use and access the Software may be terminated at any time, with or without notice by the Licensor, the Client, or by an Authorised User who is an Administrator.

7.4 The Client may terminate this Agreement:
(a) if the Licensor commits a breach of this Agreement which is capable of remedy and the Licensor fails to remedy the breach after receiving 30 days written notice from the Client;
(b) if the Licensor becomes insolvent, bankrupt, is wound up, or has an administrator, liquidator or receiver appointed over it or its assets;
(c) in accordance with any additional termination rights specified in the Software Purchase Agreement; or
(d) where a Consumer Licence is granted for a Trial Period – at any time before the end of the Trial Period.

7.5 Upon the termination of this Agreement:
(a) the Client will cease using the Software and will ensure that all of its Authorised Users (if applicable) cease using the Software;
(b) the Licensor may delete all of the Client’s and (if applicable) its Authorised Users’ Accounts and remotely disable the Client’s and (if applicable) each Authorised User’s access and use of the Software;
(c) subject to the parties entering into a separate agreement for the transition and transfer of the Client Data to the Client, the Licensor may delete all copies of the Client Data (as that term is defined below) stored by the Software and without any notification or liability to the Client;
(d) the Client will delete or destroy, or where specified by the Licensor, return to the Licensor, any Material supplied by the Licensor; and
(e) nothing herein shall be construed to release either party from any obligation that arose prior to the effective date of such termination.

8. UPDATES AND UPGRADES
8.1 The Licensor may from time to time provide enhancements or improvements to the features/functionality of the Software, which may include a new version, new release, patches, bug fixes, updates, upgrades and other modifications (each an “Upgrade”).

8.2 If the Licensor releases an Upgrade and provides access and use of the Upgrade to the Client (whether pursuant to the terms of the Software Purchase Agreement or otherwise), then this Agreement will continue to apply to the Upgrade (as if the Upgrade were the “Software”).

8.3 The Licensor reserves the right to modify, suspend or discontinue, temporarily or permanently, any functionality contained in the Software or any service to which it connects, with or without notice and without liability to the Client.

8.4 Upgrades may modify or delete certain features and/or functionality of the Software. The Client agrees that the Licensor has no obligation to:
(a) provide any Upgrades or provide the Client with access to any Upgrade that relates to any feature or functionality that the Client has not subscribed to under the terms of the Software Purchase Agreement; or
(b) continue to provide or enable any particular features and/or functionality of the Software to Clients in any Upgrade; and
(c) if the Client has a specific customisation of the Software produced for them (under the terms of a separate agreement), then the Licensor is under no obligation ensure that the customisation continues to function in a similar manner after the Upgrade is applied. The Licensor may require that the Client engage the Licensor under a separate agreement or other consulting arrangement to update the customisation so that it continues to function with the Upgrade.

9. SUPPORT SERVICES AND COMMUNICATIONS
9.1 The Client’s entitlement to software support will be as set out in the Software Purchase Agreement.

9.2 If the Software Purchase Agreement does not impose any specific support obligations on the Licensor, then the Client may obtain software support via the relevant support pages and FAQs on the Licensor’s website for the Software.

10. INTELLECTUAL PROPERTY RIGHTS AND CLIENT DATA
10.1 The Licensor retains ownership of the Software, Materials, Derived Data and the Licensor’s Background IP (together, Licensor IP) and all present and future intellectual property rights in copyright, moral rights, inventions (including patents), trademarks, designs, circuit layouts (whether or not registered or registrable) throughout the world (together “Intellectual Property Rights”) which subsist in Licensor IP at all times. Apart from the Licence granted herein, all such rights are reserved by the Licensor. Notwithstanding any other provision, nothing in this Agreement licences the Client or is Authorised Users (if applicable) to access or otherwise use Derived Data.

10.2 The Client agrees that it will use the same degree of effort that it uses to protect its own proprietary information to maintain possession and confidentiality of Licensor IP provided to the Client, and to protect the copyrights, and all related technical information, data and materials supplied to the Client by the Licensor.

10.3 Subject to the Client’s rights arising under the Copyright Act 1968 (Cth), the Client will not copy, reproduce, modify, disassemble or reverse engineer the Software in any way without receiving written permission from the Licensor to do so.

10.4 Subject to clause 10.6 and 10.8 and the Licensor’s Intellectual Property Rights in the Licensor IP, the Client shall retain all Intellectual Property Rights (if any) in information or data which the Client or its Authorised Users (if applicable) upload to or store in the Software, which includes all raw information, text, videos, data and content that inputted into the Software, including data which is your (or your Authorised Users (if applicable)) name, phone number, email address, employment status, or gender (Client Data). You also retain all Intellectual Property Rights in your Background IP (as defined below).

10.5 The Client may access Client Data via the functionality contained in the Software (but if applicable, the access of each Authorised User to Client Data (in whole or in part) may be restricted by the Client in its sole discretion, as provided by the Software).

10.6 The Client agrees that the Licensor may use Client Data:
(a) as necessary to provide the Client its expected functionality from the Software and any related services (including in respect of any related Implementation Services or Support Services);
(b) to the extent permitted by, and in accordance with, the Licensor’s Privacy Policy; and
(c) to create Derived Data. Derived Data is a processed form of Client Data which has been de-identified (such that the identity of any individual to whom the Derived Data relates cannot readily be determined). The Licensor may make any use whatsoever of the Derived Data including for the purposes of data analysis to determine trends or insights present in Client Data, or for training, improving or creating models in the Software, including when aggregated with or compared with the Derived Data contained from the Licensor’s other customers. This sub-clause survives termination.

10.7 There is no obligation on the Licensor to backup Client Data other than as provided by the then current functionality of the Software or as specified in a Software Purchase Agreement. The Client acknowledges that it must maintain its own copy of the Client Data and that the Licensor is not responsible for any loss of, or corruption to, the Client Data.

10.8 The Client acknowledges and agrees that all Intellectual Property Rights discovered or developed in relation to the Software (including any modification, enhancement, modification, or adaptation of the same), Derived Data and any comments, feedback, or suggestions provided to the Licensor in connection with any of the foregoing provided by the Client or its Authorised Users (if applicable) will automatically vest in and are assigned to the Licensor with full title guarantee.

10.9 In this Agreement: Background IP means all Intellectual Property Rights which (a) a party owned prior to entering into this Agreement; or (b) is created independently of the Products or Services, or otherwise of this Agreement. In the case of the Licensor, its Background IP will also include its products, tools, computer software, code libraries, images, films, artwork, graphics, databases, or other works the subject of copyright, which it creates for sale to or use by its customers generally (whether created before, during or after the date of this Agreement.

11. EXPORT LAWS
11.1 The Licensor, its employees and its agents may be subject to export control laws of Australia, the United States or other jurisdictions that prohibit or restrict transactions with certain parties, and the type and level of technologies and services that may be exported (Export Laws). The Client agrees to comply fully with all such laws and regulations of Australia, the United States and other countries to assure that neither the Software, nor any direct products thereof are exported, directly or indirectly, in violation of Export Laws, or are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

11.2 The Software nor underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) Cuba, North Korea, Iran, Russia, Sudan, Syria or any other country to which Australia or the United States has embargoed goods; or to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List, Non-proliferation Sanctions or General Orders, or similar lists or orders in Australia or other jurisdictions. By using the Software, the Client and it’s Authorised Users each agree to the foregoing and each represent and warrant that it is not located in, under the control of, or a national or resident of any such country or on any such list, and that it acknowledges that it is responsible to obtain any necessary Australian or United States government authorisation to ensure compliance with such laws.

12. THIRD PARTY SERVICES AND AGREEMENTS
12.1 The Software may incorporate components licensed to the Licensor by third parties, which may be subject to their own End User Licence Agreements or other third party terms and conditions (Third Party Agreement).

12.2 The Client and each of its Authorised Users (if applicable) agrees that, in addition to this Agreement, the use of the Software, will also be governed by any terms and conditions specified in any relevant Third Party Agreement that applies to the Software and which are disclosed to the Client from time to time (whether by Licensor or the relevant third party).

12.3 The Client and each of its Authorised Users (if applicable) agrees to be bound by and observe all terms and conditions of any Third Party Agreement and acknowledges that any breach of a Third Party Agreement will entitle the Licensor to terminate the Licence and exercise its rights under clause 6.

12.4 The Software may display, include or make available third-party content (including data, information, applications and other products services) or provide links to third-party websites or services, or otherwise require integration with certain third-party software or services (Third-Party Services).

12.5 The Client acknowledges and agrees that the Licensor shall not be responsible for any Third-Party Services, including their functionality, defects, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. The Client further acknowledges that if Third Party Services become unavailable for any reason, the Software may not operate as intended during the period in which the Third-Party Service is unavailable. The Licensor does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services.

12.6 Third-Party Services and links thereto are provided solely as a convenience to the Client and its Authorised Users (if applicable) and access and use of such Third-Party Services and/or links are entirely at the Client’s own risk and subject to such third parties’ terms and conditions.

12.7 The Licensor cannot provide warranty or support coverage for problems caused by defects or changes in Third-Party Services.

13. CONFIDENTIALITY
13.1 Each party must not, and must use its reasonable endeavors to ensure that it and its officers, employees and advisers and others to whom it discloses the terms of this Agreement, do not:
(a) disclose any Confidential Information; or
(b) use any Confidential Information in any manner which may cause or be calculated to cause loss to the other party.

13.2 Despite anything else contained in this Agreement to the contrary, a party may make any disclosure of Confidential Information:
(a) if it has the consent of the party disclosing such information to do so;
(b) if it is required to do so by law;
(c) if the Confidential Information has come within the public domain, other than by a breach of this clause 13 by any party; or
(d) if the Confidential Information was in its possession or known by it without restriction prior to receipt from the party disclosing such information, as can be established by the party’s contemporaneous records.

13.3 “Confidential Information” for the purposes of this clause means any information of a confidential nature disclosed by either party to the other. In the case of the Licensor, its Confidential Information will include the terms of this Agreement and the Software Purchase Agreement, and the Licensor’s IP. In the case of the Client, its Confidential Information will include Client Data.

14. PRIVACY
14.1 Each party warrants and undertakes to the other party that the party will comply with each of its obligations arising under Privacy Laws. Privacy Laws includes without limitation, the Australian Privacy Principles and the Privacy Act 1988 (Cth), or any other similar Act in any applicable Australian State or Territory together with all associated regulations and industry codes in effect from time to time (Privacy Law).

14.2 Personal Information (as that term is defined in Privacy Laws) collected by the Software or stored in the Software (including Client Data), will be held, maintained, used or disclosed by the Licensor in accordance with Privacy Laws and the Licensor’s Privacy Policy in effect from time to time. A copy of the current Privacy Policy may be obtained from the Licensor’s website.

14.3 The Client and each of its Authorised Users (if applicable) acknowledges that the Software is not intended to be used to collect Personal Information which relates to any individuals:
(a) criminal record;
(b) health information;
(c) genetic information that is not otherwise health information;
(d) biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or
(e) biometric template;
(jointly, Restricted Information). The Client and its Authorised Users (if applicable) each warrant that they will not:
(f) use the Software to collect, record or store any Restricted Information; and
(g) input any Personal Information into Software free text fields.

14.4 The Client and its Authorised Users (if applicable) acknowledge they will be required via Software functionality to provide their express consent to the Licensor using, collecting, and disclosing their Personal Information as set out in the Licensor’s Privacy Policy and this Agreement.

14.5 The Software Purchase Agreement may include additional special terms governing the handling of data breaches or other security incidents relating to Personal Information which in event of inconsistency may take precedence over this clause 14.

14.6 Where indicated in the Software Purchase Agreement, the parties agree that the provisions of the Data Processing Agreement are incorporated by reference into this Agreement. Where Impactora’s Data Processing Agreement applies, it will be attached to or accessible via a link provided in the Software Purchase Agreement.

15. CYBERSECURITY
15.1 Application
This clause 15 only applies only to Clients who subscribe for an Enterprise Licence (whether on an Evaluation Term or an Subscription Term).

15.2 In this agreement:
Cybersecurity Requirements means all applicable laws, regulations, mandatory codes relating to security of network and information systems and security breaches, and incident reporting requirements, which apply to the Software, and which include (to the extent applicable) the Privacy Laws, all as amended or updated from time to time

Security Incident means:
(a) any actual, potential or suspected:
(i) loss;
(ii) accidental or unauthorised access, use, or disclosure;
(iii) data breach within the meaning of the applicable Privacy Laws;
involving any data; or
(b) a failure of a necessary, security-related Risk Control to operate effectively to mitigate the risk it is intended to mitigate.

Risk Control means any processes, policies, activities, actions, or things used to mitigate risks including, without limitation, security-related risk controls to prevent a Security Incident.

15.3 Cybersecurity Obligations

The Licensor will take all reasonable steps to ensure that Software complies with the Cybersecurity Requirements.

15.4 Handling of Security Incidents
If a Security Incident occurs, Impactora must:
(a) advise the Client in writing, as soon as practicable, but no later than twenty-four (24) hours after becoming aware of the Security Incident, and follow any other processes set out in this Agreement in relation to the Security Incident;
(b) provide the Client with the name and contact information for an employee who will serve as a primary security contact and be available to assist promptly, as a contact in resolving obligations arising from a Security Incident;
(c) take all reasonable steps to respond to, mitigate against, and remediate the impacts and consequences of any Security Incident;
(d) restore or procure the restoration to the last available back-up (or other copy) of all data that was lost, corrupted, or changed by or through the Security Incident;
(e) promptly take all further available steps to restore or procure the restoration of the data to its former state immediately prior to the Security Incident;
(f) retain and preserve logs and other evidence regarding Security Incident to help in determining cause, damage, and likely source;
(g) coordinate and cooperate with the Client to investigate and manage the Security Incident including:
(i) assisting with any investigation including by cooperating with the Client in relation to any obligation arising under Privacy Laws to notify a government agency of the Security Incident and the Client’s response to the Security Incident;
(ii) providing physical access to the facilities and operations affected;
(iii) facilitating interviews with staff and any others involved in the matter; and
(iv) making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise reasonably required by either party.

16. LIMITATION AND IMPLIED TERMS
16.1 The Client acknowledges that performance of the Software may be dependent on the Client’s (or its Authorised Users’) IT or mobile network infrastructure and in the use of the Software the Licensor cannot guarantee any specific end-user performance.

16.2 The Client acknowledges that the Software and Materials are provided by the Licensor on an “as is” basis. The Client further acknowledge that the Licensor has made no warranties that the Software or Materials:
(a) has any particular level of uptime or availability;
(b) will otherwise be accessible at all times;
(c) will have all functionality available at all times;
(d) is otherwise error free; or
(e) that the use of the Software or associated Materials lead to any particular result or outcome.

16.3 The Client acknowledges and agrees that it is solely responsible for promoting the uptake of the Software by its Authorised Users (if any). The Client further acknowledges that the Licensor makes no representations regarding the level or manner in which Authorised Users (if any) will adopt or utilise the Software. The Licensor shall not be liable for any loss or damages suffered by the Client arising from the failure of its Authorised Users to use the Software at any specific level or in any particular manner anticipated by the Client.

16.4 Subject to clauses 16.7 and 16.8:
(a) any and all warranties, representations, and any term that would be implied into this Agreement, including without limitation any condition, warranty or liability that could be imposed on the Licensor, is hereby excluded; and
(b) the Client agrees that the Licensor will not be liable in respect of any claim by the Client (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, economic loss, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Software or the provision of any other goods or services under this Agreement and whether as a result of any negligence, breach or default, by the Licensor.

16.5 The maximum liability of the Licensor under this Agreement for any and all breaches of this Agreement, and for any negligence in relation to this Agreement, will not exceed:
(a) the total annual licence fees paid for the Software by the Client for the then current Subscription Term; or
(b) if no price is paid or a Subscription Term, AUD $10.

16.6 If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of the Licensor is limited to:
(a) in the case of goods, any one or more of the following – the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
(b) in the case of services – the supplying of the services again; or the payment of the cost of having the services supplied again.

16.7 If the consumer guarantees under the Australian Consumer Law apply to the provision of any goods or services by the Supplier to the Client, then the Supplier provides the following notice to the extent required by the Australian Consumer Law:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

16.8 Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of the Licensor will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.

17. AMENDMENTS
17.1 The Licensor may amend any of the terms of this Agreement in its discretion, as follows:
(a) if the Licensor reasonably considers that the change is likely to benefit the Client or have a neutral or minor detrimental impact on it, the Licensor may make any changes immediately by publishing the amended Agreement on its website or notifying the Client via email or via the Software (provided such functionality exists); or
(b) if the Licensor considers that the change is reasonably likely to have a significant detrimental impact on the Client, it will make the change after it has notified the Client of the change via email or via the Software (provided such functionality exists).

17.2 If the Client does not agree to any amendments made by the Licensor to the terms of this Agreement which are reasonably likely to have a significant detrimental impact on the Client (or are otherwise material), then the Client and its Authorised Users must immediately cease all use of the Software and the Client must promptly notify the Licensor that it wishes to terminate this Agreement. If the Client has pre-paid any License fees then the Client should contact the Licensor to determine whether it is eligible for a refund of any unused proportion of the pre-paid amount.

17.3 Without limiting the methods by which the Client may accept an amendment, the Client acknowledges and agrees that its, or any of its Authorised User’s ongoing use of the Software after the Client is made aware of any changes in accordance with clause 17.1(a) or 17.1(b), will constitute the Client’s acceptance of the amended Agreement.

18. NOTICES
Any notice or demand to be given or made under this Agreement must be in writing signed by a party’s authorised representative. A notice will be deemed to be received (a) in the case of a notice given by hand, on delivery; (b) in the case of a notice sent by pre-paid post, 5 days following the date of postage; (c) in the case of a notice sent by email, at the time the email is sent, provided the sender receives no notification that the email was not successfully sent.

19. DISPUTE RESOLUTION
19.1 In the event of any dispute arising out of, relating to or in connection with this Agreement (Dispute) the party raising the Dispute shall provide written notice to the other party (Dispute Notice). The CEOs or other representative of each party (or their nominee) shall engage in confidential negotiations with the aim of resolving the Dispute amicably.

19.2 Should a Dispute remain unresolved for a period exceeding 14 days from the date of the Dispute Notice, either party may refer the Dispute to the Resolution Institute (ACN 008 651 232) (Resolution Institute) for mediation facilitation in accordance with the Resolution Institute’s Mediation Rules (or another independent mediator agreed between the parties). The costs of the mediation shall be borne equally by the parties.

19.3 No court proceedings may be initiated regarding a Dispute without prior compliance with the provisions of this clause 19 except to seek urgent injunctive or interlocutory relief.

19.4 If a Dispute relates to the payment of fees and expenses, the Client agrees to pay the undisputed portion while the Dispute is being resolved.

19.5 Notwithstanding the foregoing, the Licensor is not required to first comply with the provisions of this clause 19 before exercising its rights under clauses 5.5 or 6.3(a).

20. MISCELLANEOUS
20.1 (Promotions) Unless otherwise requested in writing by the Client, the Licensor may use the Client’s corporate identity and logos (if applicable) as part of promoting the Software in the marketplace.

20.2 (Entire Agreement) This Agreement and its associated Software Purchase Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter.

20.3 (Waiver) Any waiver of a right or remedy under this Agreement will only be valid if the waiver is given in writing and signed by the party giving the waiver.

20.4 (Remedies Cumulative) The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

20.5 (Exercise of a right) A party may exercise a right at its discretion and separately or together with another right. If a party exercises a single right or only partially exercises a right, then that party may still exercise that right or any other right later. If a party fails to exercise a right or delays in exercising a right, then that party may still exercise that right later.

20.6 (No Merger) No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with, and not exclusive of, any rights, powers or remedies provided independently of this Agreement.

20.7 (Invalidity) If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.

20.8 (Subcontracting and Assignment) The Licensor may subcontract, assign, novate or otherwise transfer its rights and obligations that arise under this Agreement. The Client and its Authorised Users may not assign its rights or obligations that arise under this Agreement without the prior written consent of the Licensor (which may be withheld by the Licensor, acting reasonably).

20.9 (Adverse Construction) The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

20.10 (Special Conditions) The parties shall be bound by any “special conditions” identified in a Software Purchase Agreement which are expressly stated to override any term of this Agreement.

20.11 (Survival) Clauses 10, 11, 12, 13, 14, 16, and 19 survives expiry or termination of this Agreement together with any other provision which by its nature so survives.

20.12 (Jurisdiction) This Agreement will be governed by the laws of the State of Victoria, Australia and the parties consent to the exclusive personal jurisdiction and venue of the courts of the State of Victoria.

21. INTERPRETATION
21.1 In the interpretation of this Agreement, unless the contrary intention appears:
(a) a reference to this Agreement means a reference to a Agreement between the Licensor and the Client (or its Authorised Users) and includes an amendment or supplement to, or replacement or novation of this Agreement;
(b) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders;
(c) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
(d) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
(f) headings are inserted for convenience only and do not affect the interpretation of this Agreement.