By using the Faethm website, you agree to all the terms and conditions of this agreement.
Last updated 28 May, 2020
Terms and Conditions
THE PARTIES AGREE
The following definitions are incorporated in this Agreement:
2.1 We will:
a) make the Platform and Content available to You pursuant to this Agreement and the applicable Order;
b) use commercially reasonable efforts to make the Platform and Content available 24 hours a day, 7 days a week with a target SLA of 99.9 except for:
(i) planned downtime, no more frequently than 1 weekend day per quarter (of which We shall give no less than 48 hours advance electronic notice), and,
(ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, non-Platform application, or denial of service attack.
2.2 Any unscheduled downtime will be managed in accordance with Our incident management workflow.
2.3 Protection of Your Data. We will:
(ii) as compelled by law in accordance with section 8.3 (Compelled Disclosure) below,
(iii) as You expressly permit in writing,
3. Our Personnel
3.1 We will be responsible for the performance of our personnel (including
our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein.
4. Your Responsibilities
4.1 You will:
(a) be responsible for Users’ compliance with this Agreement, Documentation and
(b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data,
(c) use commercially reasonable efforts to prevent unauthorised access to or use of the Platform and Content, and notify Us promptly of any such unauthorised access or use,
(d) use the Platform and Content only in accordance with this Agreement, Documentation, Orders and applicable laws and government regulations.
5. Usage Restrictions:
5.1 You will not:
6. Fees and Payment
6.1 Fees. You will pay all fees specified in Your Order. Except as otherwise specified herein
or in an Order:
(a) fees are based on the Platform and Content annual subscriptions purchased and not actual usage,
(b) payment obligations are non-cancelable and fees paid are non-refundable, and
(c) quantities purchased cannot be decreased during the relevant subscription term.
6.2 Invoicing and Payment. If required by You, You will provide Us with a valid purchase order or alternative document reasonably acceptable to Us.
(a) We will provide a valid Tax invoice to You, in the format reasonably required by You, in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due net 30 days from the date that a valid Tax invoice is received by You. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies:
(a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or,
(b) We may condition future subscription renewals and Order on payment terms shorter than those specified in section 6.2 (Invoicing and Payment).
6.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for the Platform is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Platform until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with section 13 (Notices, Governing Law and Jurisdiction) for billing notices, before suspending services to You.
6.5 Payment Disputes. We will not exercise Our rights under section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6 GST. In this clause 6.6, a term or expression starting with a capital letter which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated acts and legislative instruments (collectively, the GST Law) will have the same meaning as in the GST Law, unless the context otherwise requires.
a) Each consideration or payment obligation in this agreement is exclusive of GST unless otherwise indicated.
b) If GST is or becomes payable on a Supply made under or in connection with this agreement, an additional amount is payable by the party providing consideration for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.
c) The additional amount payable under paragraph 6 is payable at the same time and in the same manner as the Consideration for the Supply.
d) Unless otherwise stated in this Agreement, the following principles apply when determining the amount of a payment under this Agreement:
i) if a party is entitled under this Agreement to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and
ii) if a party sets off an amount under this Agreement, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with paragraph 6.
e) If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.
6.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. Proprietary Rights and Licenses
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our rights, title and interest in the Platform and Content, including all of Our related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 Access to and use of the Platform and Content. You have the right to access and use the Platform and applicable Content subject to the terms of applicable Orders, this Agreement and the Documentation.
7.3 Platform and Content including, but not limited to, statistics, metrics, information relating to best practices, research, question sets, taxonomy, templates, text, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements, the selection and arrangements thereof, and trademarks, service marks, trade names and any other intellectual property related to the Platform and Content is Our property and is protected, without limitation, pursuant to copyright and trademark laws.
7.5 You may not distribute (including via e- mail or the Internet), or otherwise make available, copies to others, whether or not for payment or other consideration, without Our written permission. Any unauthorised or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.
7.6 License to host Your Data. Subject to Our warranty that Your Data will remain within the country specified in Schedule 1 at all times. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, as reasonably necessary for Us to provide the Platform in accordance with this Agreement.
Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data.
7.7 License to use Your feedback and Your Data in an unidentifiable aggregated form. You grant to Us, a perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any unidentifiable aggregated data, suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Platform. We will not publish Your Data in a form that identifies the information as Yours.
8.1 Definition of Confidential Information. Confidential Information means all information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally 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 the Platform and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information 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 was independently developed by the Receiving Party.
8.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to:
(a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and,
(b) except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
(c) Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
(d) Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order to a subcontractor to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 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.
9. Representations, Warranties, Remedies and Disclaimers
9.1 Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 Our Warranties. We warrant that during an applicable subscription term:
(a) this Agreement, the Order and the Documentation will
accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data,
(b) We will not materially decrease the overall security of the Platform,
(c) The Platform will perform materially in accordance with the applicable Documentation, and
9.3 For any breach of a warranty above, Your exclusive remedies are those described in 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.4 Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. The Platform and Content are provided as is, exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
10. Mutual Indemnification
10.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the Platform infringes or misappropriates such third party’s intellectual property rights (a Claim Against You), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You:
(a) promptly give Us written notice of the Claim Against You,
(b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and
(c) give Us commercially reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to the Platform, We may in Our discretion and at no cost to You:
i) modify the Platform so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under Warranties above,
ii) obtain a license for Your continued use of the Platform in accordance with this Agreement, or
iii) terminate Your subscriptions for the Platform upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, or Your use of the Platform in violation of this Agreement, the Documentation or applicable Orders.
10.2 Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Platform or Content in violation of the Agreement, the Documentation, Order or applicable law (each a Claim Against Us), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We :
(a) promptly give You written notice of the Claim Against Us,
(b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and
(c) give You all reasonable assistance, at Your expense.
10.3 Exclusive Remedy. This section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section 10.
11. Limitation of Liability
11.1 In no event shall the aggregate liability of each party together with all of its Affiliates arising out of or related to this Agreement exceed the total amount paid by You and Your Affiliates hereunder for the services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Your and Your Affiliates’ payment obligations under section 6 (fees and payment).
11.2 Exclusion of Consequential and Related Damages. In no event will either party or its Affiliates have any liability arising out of or related to this Agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party’s or it’s Affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
12. Term and Termination
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order. Company may extend this Agreement by 12 months on up to 3 separate occasions by giving written notice of the extension to Faethm prior to the expiry of the current term. The per unit pricing during any renewal term will increase by up to 5% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal.
A party may terminate this Agreement for cause:
(a) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
(b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with section 12.3 We will refund You any prepaid fees covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by Us in accordance with section 12.3, You will pay any unpaid fees covering the remainder of the term of all Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5 Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in the Platform or otherwise in Our possession or control, unless legally prohibited and except in depersonalised aggregated form.
12.6 Surviving Provisions. The sections 6 Fees and Payment, 7 Proprietary Rights and Licenses, 8 Confidentiality, 9 Representations, Warranties, Remedies and Disclaimers, 10 Mutual Indemnification, 11 Limitation of Liability, 12.4 Refund or Payment upon Termination, 12.5 Your Data Portability and Deletion, 12.6 Surviving Provisions and 16 General Provisions will survive any termination or expiration of this Agreement.
13. Notices, Governing Law and Jurisdiction
13.1 Notices. Any notice, consent, approval, undertaking, acknowledgement, verification or report contemplated by this Agreement, must be given in writing.
13.2 If a notice is:
(a) delivered by hand, the notice will be deemed to have been received when delivered;’
(b) sent by mail from within Australia to an address within Australia, the notice will be deemed to have been received three (3) working days after the date of posting;
(c) sent by mail outside Australia or mailed to an address outside Australia, the notice will be deemed to have been received five (5) working days after the date of posting;
(d) sent by facsimile, the notice will be deemed to have been received when the sender receives confirmation that the transmission was successful, except that if a notice is deemed to have been received at a time after 5.00pm on a working day, or on a day that is not a working day, then the notice will be deemed to have been received on the following working day.
13.3 Notices given to a Party under this Agreement must be given to the addresses and facsimile numbers specified in the Agreement.
13.4 Governing Law. This Agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales and the Parties submit to the jurisdiction of the courts of that State.
13.5 No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted assignment under section 16.1, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14. Protection of Personal Information
14.1 We agree to:
(a) use personal information held or controlled by Us in connection with this Agreement only for the purposes of fulfilling Our obligations under this Agreement;
(b) take all reasonable measures to ensure that personal information in Our possession or control in connection with this Agreement is protected against loss and unauthorised access, use, modification or disclosure;
(c) comply with the Information Privacy Principles in the Privacy Act 1988 (Cth) to the extent that the content of those principles apply to the types of activities We are undertaking under this Agreement, as if We were an agency as defined in that Act;
(d) cooperate with any reasonable demands or inquiries made by You on the basis of the exercise of the functions of the Office of the Australian Information Commissioner under the Privacy Act 1988 and the Freedom of Information Act 1982.
(e) ensure that any person who has an access level which would enable that person to obtain access to any personal information is made aware of, and agrees to observe the Information Privacy Principles and other obligations referred to in this Clause;
(f) comply with any policy guidelines laid down by You or issued by the Privacy Commissioner from time to time relating to the handling of personal information; and
(g) comply with any direction of Yours to observe any recommendation of the Information Commissioner relating to any acts or practices of Us that the Information Commissioner considers breaches the obligations in this Clause.
15. General Provisions
15.1 Assignment and Novation. Neither Party may novate or assign or otherwise deal with any of its rights or obligations under, this Agreement without the other Party’s prior written consent.
15.2 Waiver. Failure by either Party to enforce a provision of this Agreement will not be construed as in any way affecting the enforceability of that provision, or the Agreement as a whole.
15.3 Severability. Each provision of this Agreement and each part thereof will, unless the context necessarily requires otherwise, be read and construed as a separate and severable provision or part. If any provision or part thereof is void or otherwise unenforceable for any reason then that provision or part will be severed and the remainder will be read and construed as if the severable provision or part had never existed.
15.4 Entire Agreement. This Agreement represents the Parties’ entire agreement and its terms replace any prior representations, communications, agreements, statements or understandings, whether oral or in writing, relating to its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
(1) the applicable Order,
(2) this Agreement, and
(3) the Documentation.
15.5 Further Assurances. Each Party must promptly at its own costs do all things (including executing and if necessary delivering all documentation) necessary or desirable to give full effect to this Agreement.
15.6 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.
15.7 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
16.1 This Agreement will be validly executed if signed in any number of counterparts and the counterparts taken together will constitute one agreement.
16.2 Each Party may communicate its execution of this Agreement by successfully transmitting an executed copy of this Agreement by facsimile or email to the other Party.