The Customer named below acknowledges and accepts these SaaS Supply Terms and Conditions. The Customer acknowledges and agrees that the Customer has had an opportunity to review and negotiate these terms and conditions and understands that these terms and conditions form part of each ‘Contract’ (as defined in these terms and conditions) and that such Contracts create legally binding obligations on the Customer (including in circumstances where these terms and conditions have been made available via a link), and that the Customer may or may not have taken up that opportunity to review and negotiate these terms and conditions at its discretion).
The Supplier will resell third party cloud services (SaaS) to the Customer in accordance with these terms and conditions.
The Supplier’s Master Terms and Conditions, which have been accepted and signed by the Customer, apply to these SaaS Supply Terms and Conditions.
1. Terms and conditions
1.1 The Customer accepts the terms and conditions that apply at the time of accepting and signing a Statement of Supply or at the time of accepting a Quote in writing (as applicable). The Supplier may amend or replace these terms and conditions at any time for future Contracts (in respect of which the Customer will have an opportunity to review and negotiate the amended or replacement terms and conditions prior to entering into those Contracts). For existing Contracts, the terms and conditions in place at the time that the Contract was made continue to apply for that Contract, unless the Customer agrees otherwise in writing. Any additional or different terms that the Customer stipulate or state in any communication with the Supplier will not be binding on the Supplier or included in a Contract unless expressly agreed upon in writing by both parties.
1.2 Each capitalised term used in these terms and conditions has the meaning given to that term in clause 11 of these terms and conditions. The Customer acknowledges that in these terms and conditions, ‘Contract’ is the contract between the Supplier and the Customer and ‘Third Party Agreement’ is the third party agreement (or terms and conditions) which applies directly between the third party vendor and the Customer.
1.3 Nothing in these terms and conditions operates to alter or in any way diminish any aspect of a Third Party Agreement.
2. Charges and payment
2.1 The Customer will pay the Relevant Pricing for the Third Party Service in accordance with the timing specified in the applicable Quote or Statement of Supply or if not specified, will pay on the 20th of the month following the date of each invoice. All payments must be made in full without deduction or set-off.
2.2 GST will be charged and payable in addition to the Relevant Pricing.
2.3 If any amount is not paid by the due date, the Supplier may suspend provision of all or any of the Third Party Services until the Supplier receives payment in full of all outstanding amounts.
2.4 The Relevant Pricing may be changed by the Supplier on the Supplier giving at least six weeks’ written notice (by email) to the Customer of the new charges that will apply. No increase in the Relevant Pricing will exceed the rate of inflation as measured by the Consumer Price Index in addition to any increase in the Third Party Service made by the relevant vendor.
3. Term
3.1 Subject to clause 3.2, each Contract will commence on the Commencement Date and where the Quote or Statement of Supply (as applicable) specifies a fixed term (including for example by specifying an annual payment or minimum term), that fixed term will apply.
3.2 If the Quote or Statement of Supply does not specify a fixed term (as described in clause 3.1), a Contract may be terminated by the Customer at any time on written notice to the Supplier with the termination taking effect at the end of the month in which the Supplier confirms receipt of the Customer’s cancellation request unless otherwise specified in the Contract.
3.3 Unless otherwise agreed in writing, the Quote or Statement of Supply will renew for a renewal term only if:
- the Supplier provides not less than 4 weeks written notice to the Customer prior to expiry of the initial term or current renewal term (as applicable) of the desire to not continue the arrangement; and
- the Customer confirms in writing to the Supplier not less than one month prior to that expiry that it wishes to not renew the Contract.
3.4 Any renewal of a Contract will be on the same terms and conditions as for the existing Contract, subject to any increase in price and any other changes notified to the Customer in the Supplier’s written notice given under (a) above or otherwise agreed in writing between the parties.
3.5 Nothing in this clause 3 reduces the minimum term (if any) which the Customer commits to under the relevant Third Party Agreement.
4. Provision of Third Party Service
4.1 The Supplier will supply the Third Party Service to the Customer in accordance with the relevant Contract. The Third Party Services are provided to the Customer on a non-exclusive basis and unless otherwise specified in the Third Party Agreement the Customer’s right to use the Third Party Service is not transferable. Where applicable, the Supplier will provide log on details to the Customer to enable the Customer to access and use the Third Party Service.
4.2 If the Supplier provides support services in relation to the Third Party Service, the Supplier will do so under a separate agreement between the parties for supply of those support services and otherwise in accordance with the Supplier’s standard terms and conditions for supply of those services. The Customer acknowledges that unless expressly agreed otherwise between the parties in writing, separate charges apply for provision of support and any other services that may be provided by the Supplier in respect of the Third Party Services.
4.3 In addition to the Third Party Agreement (which applies directly between the Customer and the relevant third party vendor), provision of the Third Party Service is subject to these terms and conditions including without limitation clause 4.4.
4.4 The Customer must not, nor may the Customer permit any other person to do any of the following, or attempt to do so:
- copy, alter, modify, reverse assemble, reverse compile, reverse engineer or enhance the Systems; or
- permit or enable users other than the Permitted Users to access or use the Third Party Service; or
- provide the Third Party Service to any users through operation of a bureau or like services; or
- resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the Third Party Service; or
- use the Third Party Service in any way that could damage or interfere with the Systems in any way;
- use the Third Party Service otherwise than in the manner in which the Third Party Service are designed to be used;
- use the Third Party Service in any way (whether by transmitting or inputting any files or other material or otherwise) that could interrupt, damage or otherwise interfere with use of the Third Party Service by any other customers;
- do any act which would or might invalidate or be inconsistent with the Intellectual Property rights of the relevant third party vendor.
5. Third Party Agreements
5.1 Supply of all Third Party Services is subject to the relevant Third Party Agreement, as well as these terms and conditions. The Customer acknowledges that the Third Party Agreement for the Third Party Services has been provided or made available to the Customer or is available on request from the Supplier and the Customer is deemed to have accepted all applicable Third Party Agreements on accepting a Quote or signing a Statement of Supply.
6. Data
6.1 The Customer warrants that the Customer has the right and authority to deal with the Data in its use of the Third Party Services.
6.2 Without limiting any other aspect of these terms and conditions or the relevant Third Party Agreement, the Customer is responsible for:
- except as expressly provided otherwise in these terms and conditions and the relevant Third Party Agreement, all aspects of the Customer’s access and use of the Third Party Service; and
- ensuring that, in using the Third Party Service, it complies with all applicable laws. The Supplier accepts no responsibility for ensuring that use of the Third Party Service will result in the Customer complying with applicable laws or enable the Customer to comply with applicable laws (including for example and without limitation, laws requiring records to be stored in a particular jurisdiction).
6.3 Nothing in these terms and conditions transfers ownership of the Data to the Supplier.
6.4 The Data is available to the Customer in accordance with the applicable Third Party Agreement and without limiting any legal obligations that the Supplier may have in respect of the Data, the Supplier neither has nor accepts any obligation to provide the Data to the Customer during or following the term of any Contract.
7. Intellectual Property
7.1 All Intellectual Property in the Third Party Services is the property of the relevant third party supplier (or its licensors) and nothing in these terms and conditions operates to change that ownership.
8. Warranties
8.1 Clause 14 (Warranties) of the Master Terms and Conditions applies in full.
9. Consequences of Termination
9.1 On termination of a Contract in accordance with the Master Terms and Conditions:
- all amounts due to the Supplier will become immediately due and payable including payments for the remainder of the fixed term where applicable and unless the Supplier agrees otherwise in writing;
- without limiting the Customer’s rights under the relevant Third Party Agreement, the Supplier will cease to provide the Third Party Services to the Customer, and the Customer will cease to have any entitlement to use the Third Party Service;
- the provisions of the Contract that are by their nature intended to survive termination will remain in full force.
10. Liability
10.1 Except as provided in clause 10.2, the liability provisions in the Master Terms and Conditions apply to every Contract.
10.2 Each party’s liability to the other party under each Contract is limited to direct loss only, to the amount paid by the Customer under the relevant Contract in the 3 month period preceding the event giving rise to the claim provided that nothing in this clause 10.2 serves to limit the Customer’s obligation to pay invoices due under that Contract.
10.3 Subject to and without limiting any Third Party Agreement, the Customer acknowledges that, in addition to the supply of Third Party Services under a Contract:
- in using the Third Party Service, the Customer may be redirected to third party websites and/or elect to use third party products and services;
- access or use by the Customer of any such third party websites, products or services is subject to the third party’s terms and conditions; and
- the Supplier accepts no responsibility or liability for or in connection with access or use by the Customer of any such third party websites, products or services.
11. Definitions:
In these terms and conditions:
“Accepted Quote” means a Quote that has been accepted by the Customer by email or other written notification to the Supplier, or by making first payment to the Supplier in accordance with the Quote;
“Contract” means the Statement of Supply or Accepted Quote (as applicable), together with these terms and conditions (as updated from time to time under clause 1.1 above) and the Master Terms and Conditions;
“Commencement Date” means the date of supply of the Third Party Service to the Customer unless a different date is specified in the Quote or Statement of Supply (as applicable);
“Customer” means the customer named in the Customer Information;
“Customer Information” means the customer name, email address and any other contact information included in an Accepted Quote or Statement of Supply (as applicable);
“Data” means the Customer’s data that is Processed in the course of provision or use of the Third Party Service;
“Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
“Maximum Number” means, where applicable, the maximum number of users specified in the Quote or Statement of Supply (as applicable);
“Permitted Users” means permitted users not exceeding the relevant Maximum Number as specified in the Quote or Statement of Supply (as applicable);
“Quote” means a quote issued by the Supplier to the Customer for provision of SaaS subscriptions with applicable pricing and other details relevant to the subscriptions;
“Relevant Pricing” means the pricing specified in the Quote or Statement of Supply (as applicable), as may be increased on written notice to the Customer;
“Statement of Supply” where applicable, means the statement of supply that precedes or which references these terms and conditions, that has been signed or accepted in writing by the Customer;
“Supplier” means Kavira Technology Pty Ltd, a company registered in Victoria;
“Systems” means, as the context permits, the software used by the third parties to provide the Third Party Service and/or the infrastructure used to host the Third Party Service;
“Third Party Agreement” means the third party agreement or terms and conditions, issued by the third party vendor, that applies to use of the Third Party Service;
“Third Party Service” means the third party SaaS subscription services specified in the Quote or Statement of Supply (as applicable).
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