1. Access to the Hosting Services.
ChekRite grants Customer a right to receive the Hosting Services.
1.1. The Software is located on servers that are controlled by ChekRite. Customer may access the Software, but has no right to receive a copy of the object code or source code to the
Software. Customer also has no right to direct access to the servers other than through the ChekRite portal software.
1.2. Customer must have a high speed Internet connection, and hardware and software that is compatible with the Hosting Services, as set out in the Documentation. It is Customers responsibility to provide these.
1.3. ChekRite regularly upgrades and updates the Hosting Services. This means that the Hosting Services are continually evolving. Some of these changes will occur automatically, while others
may require Customer to schedule and implement the changes. The changes may also mean that Customer needs to upgrade its equipment or versions of it’s mobile software in order to make efficient use of the Hosting Services. ChekRite will provide Customer with advance notification in this case.
1.4. ChekRite solely owns the intellectual property in the Software (except for third party components) and the Documentation.
2. Conditions of Use.
The Hosting Services provided to Customer are non-exclusive, non-transferable (except as provided in Section 17.4), and are for Customer’s internal business use only. Customer’s right to use the Hosting
Services is conditional upon the following. Customer may not:
2.1. transfer to any other person any of its rights to use the Hosting Services;
2.2. sell, rent or lease the Hosting Services;
2.3. make the Hosting Services available to anyone who is not an “Authorised User”. An Authorised User is an employee of Customer, or of a person to whom Customer has outsourced services, who is authorised to access the Software as a named user;
2.4. create any derivative works based upon the Hosting Services or Documentation;
2.5. copy any ChekRite feature, design or graphic, or reverse engineer the software;
2.6. access the Hosting Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Customer is an employee of a ChekRite competitor;
2.7. use the Hosting Services in a way that violates any criminal or civil law;
2.8. load test the Hosting Services in order to test scalability;
2.9. conduct penetration testing of the Hosting Services;
2.10. store any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, profane or otherwise objectionable as determined by ChekRite in any way.
3. Customer Data.
3.1. Customer must provide all data for use in the Hosting Services, and ChekRite is not obliged to modify or add to the Customer Data. Customer is solely responsible for the content and accuracy of the Customer Data.
3.2. The Customer Data belongs to Customer, and ChekRite makes no claim to any right of ownership in it.
3.3. ChekRite must keep the Customer Data confidential in accordance with Section 13 of this Agreement.
3.4. ChekRite must use the Customer Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose.
3.4.1.may observe and report back to Customer on Customer’s usage of the Hosting Services, and make recommendations for improved usage of the Hosting Services;
3.4.2.may identify trends and publish reports on its findings provided the reports include data aggregated from more than one customer site and do not identify Customer; and,
3.4.3.must ensure that the data centre containing the Customer Data is compliant with the ISO 27001 standard.
3.5. ChekRite must comply with the principles of the EU Data Protection Directive 95/46 and the Telecoms Data Protection Directive as amended (“the Directives”) and any successor
legislation, in relation to any “personal data” received by or originating from Customer and Customer clients, to the extent that the Directives apply to “data processors”.
3.6. ChekRite must take reasonable technical and organisational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Customer’s instructions, provided they are reasonable and lawful.
3.7. ChekRite must back up Customer Data once in each 24-hour period.
4. Hosting Services Warranties.
ChekRite warrants that: (i) the Hosting Services will function substantially as described in the Documentation; and (ii) ChekRite owns or otherwise has the right to provide the Hosting Services to
Customer under this Agreement. The remedies set out in this Section are Customer’s exclusive remedies for breach of either warranty.
4.1. If the Hosting Services do not function substantially in accordance with the Documentation, ChekRite must, at its option, either (i) modify the Hosting Services to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet Customer’s requirements. If neither of these options is commercially feasible, either party may terminate
the relevant Order Form under this Agreement.
4.2. If the normal operation, possession or use of the Hosting Services by Customer is found to infringe any third party intellectual property right or ChekRite believes that this is likely,
ChekRite must, at its option, either (i) obtain a license from such third party for the benefit of Customer; (ii) modify the Hosting Services so that they no longer infringe; or (iii) if neither of
these options is commercially feasible, terminate the relevant Order Form under this Agreement.
4.3. However, ChekRite has no warranty obligations for:
4.3.1.the extent that Software has been modified or configured by Customer or any third party, unless the modification or configuration has been approved in writing by ChekRite; or, 4.3.2.problems in the Hosting Services caused by any third party software or hardware, by
accidental damage or by other matters beyond ChekRite’s reasonable control.
PART TWO – PROFESSIONAL SERVICES.
5. Professional Services Warranties.
ChekRite warrants that (i) the Work Product will substantially conform to the Statement of Work; and (ii)
the Professional Services will be performed with reasonable skill, care and diligence. The remedies set
out in this Section are Customer’s exclusive remedies for breach of either warranty.
5.1. If the Professional Services do not conform to the Statement of Work or are not performed with reasonable skill, care and diligence, ChekRite shall re-perform the Professional Services to the extent necessary to correct the defective performance.
6. Customer’s Responsibilities.
Customer must provide ChekRite with all information, access, and full good faith cooperation reasonably necessary to enable ChekRite to deliver the Professional Services, and must do anything that is identified in the Statement of Work as Customer’s responsibility. If Customer fails to do this, ChekRite will be relieved of its obligations to the extent that the obligations are dependent upon Customer’s performance.
7. Intellectual Property Ownership.
ChekRite solely owns the intellectual property in the Work Product. Upon payment in full of any amounts due for Professional Services, Customer shall have a non-exclusive, non-transferable (except
as provided in Section 17.4) right to use the Work Product for Customer’s internal business purposes. This right shall continue for so long as, and be subject to the same terms and conditions as the right to use the Hosting Services.
PART THREE – GENERAL.
8. Term of Agreement.
This Agreement starts on the date that Customer signs an Order Form and ends when ChekRite no longer is obliged to provide Customer with Hosting Services or Professional Services under any Order Forms.
Customer must pay the fees listed in the relevant Order Form.
9.1. Customer must pay a finance charge on any overdue payment of one and one-half percent (1.5%) for each month or portion of a month that the payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly. The fees do not include any taxes, and Customer shall pay any sales, use, GST, value added or other taxes or import duties (other than corporate income taxes payable by
ChekRite) due as a result of any amounts paid to ChekRite. Customer shall bear all of ChekRite’s costs of collection of overdue fees, including reasonable legal fees.
10. Termination and Suspension.
10.1. Either party may terminate rights granted under a particular Order Form if the other breaches any material term of the Order Form (including a material term of this Agreement insofar as it
applies to the Order Form) and the breach is not cured within 30 days of written notice.
Customer’s breach of any clause of Section 2 of this Agreement shall be considered a material breach.
10.2. Instead of terminating rights granted to a Customer under an Order Form, ChekRite may suspend the provision of Hosting Services to Customer for a period of up to 60 days. At any
time during that period, ChekRite may terminate the rights granted to Customer.
10.3. Sections 2.4, 2.5, 2.6, 3.3, 7, 9, 11, 12, 13, 14, 15 and 17 continue after this Agreement ends.
10.4. If ChekRite terminates an Order Form under this Agreement because of non-payment by Customer, all unpaid fees immediately fall due for payment.
10.5. Upon termination of Customer’s Hosting Service, if requested, ChekRite must promptly provide Customer with all Customer Data in comma separated value (CSV) format. However, ChekRite may retain Customer Data in backup media for an additional period of up to 12 months, or longer if required by law.
11. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE HOSTING SERVICES, WORK
PRODUCT AND PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY
KIND, AND CHEKRITE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. CHEKRITE DOES NOT WARRANT THAT THE USE OF THE HOSTING SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE.
12. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION,
LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY
OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT,
STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF
THIS POSSIBILITY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE
HOSTING SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S
INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE HOSTING SERVICES OR WORK
PRODUCT. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES
OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF
THE FEES PAID OR PAYABLE BY CUSTOMER TO CHEKRITE UNDER SUCH RELEVANT ORDER
FORM DURING THE 24 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM
OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN
BETWEEN CHEKRITE AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF
THE FEES PAYABLE TO CHEKRITE. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM
OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF CHEKRITE’S INTELLECTUAL
PROPERTY RIGHTS, OR A BREACH OF SECTION 13 OF THIS AGREEMENT, OR IN CONNECTION
WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.
13.1. The Hosting Services, Software, Documentation and Work Product contain valuable trade
secrets that are the sole property of ChekRite, and Customer agrees to use reasonable care to
prevent other parties from learning of these trade secrets. Customer must take reasonable
care to prevent unauthorised access to or duplication of the Hosting Services, Software,
Documentation, and Work Product.
13.2. The Customer Data may include valuable trade secrets that are the sole property of Customer.
ChekRite must take reasonable care to prevent other parties from learning of these trade
13.3. Sections 13.1 and 13.2 do not apply to any information that (i) is now, or subsequently
becomes, through no act or failure to act on the part of receiving party (the “Receiver”),
generally known or available; (ii) is known by the Receiver at the time of receiving such
information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the
Receiver by a third party, as a matter of right and without restriction on disclosure; (iv) is
required to be disclosed by law, provided that the party to whom the information belongs is
given prior written notice of any such proposed disclosure; or (v) has been permitted to be
shared under any Reference Customer agreements.
14. Indemnification by ChekRite.
ChekRite must indemnify and hold harmless Customer, its affiliates, directors and employees from any
damages finally awarded against Customer (including, without limitation, reasonable costs and legal
fees incurred by Customer) arising out of any third party suit, claim or other legal action alleging that the
use of the Hosting Services, Documentation or Work Product by Customer infringes any copyright,
trade secret or United States patent, (“Legal Action”). ChekRite must also assume the defence of the
14.1. However, ChekRite shall have no indemnification obligations for any Legal Action arising out
of: (i) a combination of the Hosting Services, Software or Work Product with software or
products not supplied, or approved in writing by ChekRite; (ii) any repair, adjustment,
modification or alteration to the Hosting Services by Customer or any third party, unless
approved in writing by ChekRite; or (iii) any refusal by Customer to install and use a non-infringing version of the Hosting Services, or Work Product offered by ChekRite under Section
4.2(ii). Section 4.2(ii) and this Section 14 state the entire liability of ChekRite with respect to
any intellectual property infringement by the Hosting Services, Software or Work Product.
14.2. Customer must give written notice to ChekRite of any Legal Action no later than 30 days after
first receiving notice of a Legal Action, and must give copies to ChekRite of all communications, notices and/or other actions relating to the Legal Action. Customer must give ChekRite the sole control of the defence of any Legal Action, must act in accordance with the reasonable instructions of ChekRite and must give ChekRite such assistance as ChekRite reasonably requests to defend or settle such claim. ChekRite must conduct its defence at all
times in a manner that is not adverse to Customer’s interests. Customer may employ its own counsel to assist it with respect to any such claim. Customer must bear all costs of engaging
its own counsel, unless engagement of counsel is necessary because of a conflict of interest with ChekRite or its counsel, or because ChekRite fails to assume control of the defence.
Customer must not settle or compromise any Legal Action without ChekRite's express written consent. ChekRite shall be relieved of its indemnification obligation under Section 14 if
Customer materially fails to comply with Section 14.2.
15. Indemnification by Customer.
Customer must indemnify and hold harmless, ChekRite, its affiliates, directors, and employees from any damages finally awarded against ChekRite (including, without limitation, reasonable costs and legal
fees incurred by Customer) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the
Customer Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data (“Legal Claim”).
15.1. ChekRite must give written notice to Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and must give copies to Customer of all communications, notices and/or other actions relating to the Legal Claim. ChekRite must give Customer the sole control of the defence of any Legal Claim, must act in accordance with the reasonable instructions of Customer and must give Customer such assistance as Customer
reasonably requests to defend or settle such claim. Customer must conduct its defence at all times in a manner which is not adverse to ChekRite’s interests. ChekRite may employ its own
counsel to assist it with respect to any such claim. ChekRite must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest
with Customer or its counsel, or because Customer fails to assume control of the defence.
ChekRite must not settle or compromise any Legal Claim without Customer’s express written
consent. Customer shall be relieved of its indemnification obligation under Section 15 if
ChekRite materially fails to comply with Section 15.1.
ChekRite may list Customer as a customer and use Customer’s logo on ChekRite’s website, on publicly available customer lists, and in media releases.
17.1. This Agreement together with the Order Form represent the entire agreement of the parties, and supersede any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an Order Form, the Order Form will prevail.
17.2. This Agreement may not be changed or any part waived except in writing by the parties.
17.3. This Agreement will be governed by the laws of Australia (excluding its choice of law rules).
The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Queensland for any claim relating to this Agreement.
17.4. Customer must not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of ChekRite. ChekRite may not reasonably
withhold such consent in the case of an assignment by Customer of its rights and obligations to an entity that has acquired all, or substantially all of Customer’s assets, or to an assignment
that is part of a genuine corporate restructure. Any assignment in breach of this Section is void.
PART FOUR – DEFINITIONS.
18.1. “Customer Data” means any electronic information stored in the Software database.
18.2. “Documentation” means user documentation provided electronically by ChekRite for use
with the Hosting Services, as periodically updated.
18.3. “Hosting Services” means the hosted customer experience solutions identified in an Order
Form, and any modifications periodically made by ChekRite, but does not include the Professional Services.
18.4. “Order Form” means a document provided by ChekRite and signed by Customer that
describes ChekRite’s service offering.
18.5. “Professional Services” means the training, consulting, development and other professional
services identified on a Statement of Work, but does not include the Hosting Services.
18.6. “Reference Customer” means a customer who has voluntarily agreed to provide
testimonials, user experience and usage information about the Hosting Services, Software or
Work Product to existing and potential customers of ChekRIte.
18.7. “Statement of Work” means a document provided by ChekRite and signed by Customer that
describes the Professional Services to be provided by ChekRite to Customer.
18.8. “Software” means the software whose functionality is described in the Order Form.
18.9. “Work Product” means object code, source code, flow charts, documentation, information,
reports, test results, findings, ideas and any works and other materials developed by
ChekRite in providing the Professional Services to Customer.