Terms of Service

Akuna Tec Pty Ltd

ABN 40 696 330 248
Terms of Service

TABLE OF CONTENTS

1. term.............................................................................................................................. 2

2. TRIAL.............................................................................................................................. 2

3. SOFTWARE.................................................................................................................... 2

4. maintenance services.......................................................................................... 4

5. Support Services................................................................................................... 4

6. Practice Data........................................................................................................... 5

7. Intellectual Property Rights......................................................................... 5

8. Subscription Amount............................................................................................ 5

9. Payments.................................................................................................................... 6

10. Company's confidentiality obligations...................................................... 6

11. ACCEPTABLE USE....................................................................................................... 7

12. Privacy........................................................................................................................ 9

13. Warranties.............................................................................................................. 10

14. Acknowledgements and warranty limitations.................................... 10

15. Limitations and exclusions of liability..................................................... 11

16. Force Majeure Event.......................................................................................... 11

17. Termination............................................................................................................. 12

18. Effects of termination..................................................................................... 13

19. Subcontracting.................................................................................................... 13

20. NOTICES...................................................................................................................... 13

21. General..................................................................................................................... 14

22. DEFINITIONS AND INTERPRETATION..................................................................... 16

Akuna SAAS AGREEMENT

TERMS AND CONDITIONS

This Agreement is dated

PARTIES Akuna Tec Pty Ltd (ABN 40 696 330 248) of 5/48 Sandford Street, Mitchell, ACT 2911 (Company)

() of (Practice)

IT IS AGREED

1. term

(a) This Agreement shall come into force upon the Effective Date.

(b) This Agreement shall continue in force indefinitely subject to termination in accordance with clause 17 or any other provision of this Agreement.

2. TRIAL

In some circumstances we may grant you access to the Software on a trial basis. You acknowledge that:

(a) the duration of the trial is one week, unless otherwise agreed between the parties.

(b) The Agreement applies to your use during and after any trial period

(d) at any time during the trial period either party may, by providing the other with 48 hours’ notice terminate this Agreement without liability;

(e) you must pay the applicable Subscription Fee for the Subscription Period to us after the agreed trial period, if we continue to provide the Services.

(f) If you do not proceed with a Subscription, no Data or will be accessible to you and access to the Software will end.

3. SOFTWARE

(a) The Company hereby grants to the Practice a worldwide, non-exclusive license to use the Software for a Subscription Period, and any Subscription Renewal period, by means of a Supported Web Browser or App as part of its normal business of providing services for remuneration.

(b) The Company will register an individual nominated by the Practice as the Practice’s system administrator with authority to freely allocate the agreed amount of Akuna licences amongst the Authorised Users.

(d) Except to the extent expressly permitted in this Agreement or required by law on a nonexcludable basis, the license granted by the Company to the Practice under clause 3(a) is subject to the following prohibitions:

(i) the Practice must not sub-license its right to access and use the Software.

(ii) the Practice must not permit any unauthorised person to access or use the Software.

(iii) the Practice must not use the Software to provide services to third parties, save for Users.

(iv) the Practice must not republish or redistribute any content or material from the Software.

(v) the Practice must not make any alteration to the Platform.

(vi) the Practice must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Software without the prior written consent of the Company.

(vii) The Practice must not frame or otherwise re-publish or re-distribute the Platform or the Software

(e) The Practice shall use reasonable endeavours', including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Software using an administrator Account.

(f) The Company shall use all reasonable endeavours to maintain the availability of the Software to the Practice at the gateway between the public internet and the network of the hosting services Company for the Software but does not guarantee 100% availability.

(g) For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

(i) a Force Majeure Event;

(ii) a fault or failure of the internet or any public telecommunications network;

(iii) a fault or failure of the Practice's computer systems or networks;

(iv) any misuse of the Software or Platform by the Practice or a User

(v) any breach by the Practice of this Agreement; or

(vi) scheduled maintenance carried out in accordance with this Agreement.

(h) The Practice must not use the Software in any way that causes, or may cause, damage to the Software or Platform or impairment of the availability or accessibility of the Software.

(i) The Practice must not use the Software:

(i) in any way that is unlawful, illegal, fraudulent or harmful; or

(ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

(j) For the avoidance of doubt, the Practice has no right to access the software code (including object code, intermediate code and source code) of the Platform or the Software, either during or after the Term.

(k) The Company may suspend the provision of the Software if any amount due to be paid by the Practice to the Company under this Agreement is overdue.

4. maintenance services

(a) The Company shall provide the Maintenance Services to the Practice during the Term.

(b) The Company shall where practicable give to the Practice at least 5 Business Days' prior written notice of:

(i) scheduled Maintenance Services; and

(ii) the application of an Upgrade to the Platform;

that are likely to affect the availability of the Software or are likely to have a material negative impact upon the Software, without prejudice to the Company's other notice obligations under this Agreement.

5. Support Services

(a) The Company shall provide the Support Services to the Practice during the Term in accordance with the standards of skill and care reasonably expected from a service Company in the Company's industry.

(b) The Company shall provide a rapid response to all support requests and shall respond to urgent issues that severely impact the Practice’s ability to access or use the Software in a live production environment within one working day of a request raised via the helpdesk and within 2 business days hours for all other requests whether raised via the helpdesk or ticketing.

(c) The Company shall make every effort to ensure that problems are resolved as quickly as possible. If for any reason the Practice is dissatisfied with the Support Services then the Practice may report its dissatisfaction directly to Sarah Kelly with a right to escalate to sarah@akunatec.com.au.

(d) The Company may suspend the provision of the Support Services if any amount due to be paid by the Practice to the Company under this Agreement is overdue, and the Company has given to the Practice at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

6. Practice Data

(a) The Practice hereby grants to the Company a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Practice Data to the extent reasonably required for the performance of the Company's obligations and the exercise of the Company's rights under this Agreement. The Practice also grants to the Company the right to sub-license these rights to its hosting, connectivity and telecommunications service companies, subject to any express restrictions elsewhere in this Agreement.

(b) The Practice warrants to the Company that the Practice Data when used by the Company in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

(c) The Practice agrees that unidentified data of the Practice and/or Users may be utilised by the Company for benchmarking purposes or analysis.

7. Intellectual Property Rights[SK1] [Hicksons2]

(a) Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Company to the Practice, or from the Practice to the Company.

(b) Both parties agree not to use any current or previous trademarks or names owned or used by the other, or breach any of the others Intellectual Property Rights without the prior written consent of the other (which may be withheld at their sole and absolute discretion).

(c) Each party acknowledges the importance of the goodwill, brand and reputation of the other. Each party undertakes not to do any act or make any omission that does or may have an adverse impact on the goodwill, brand or reputation of the other, subject to the right of any of them to take actions reasonably appropriate to enforce this Agreement and to exercise any right or remedy available under the applicable law.

8. Subscription Amount

(a) The Practice shall pay the Subscription Amount to the Company in accordance with this Agreement.

(b) All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable GST, which will be added to those amounts and payable by the Practice to the Company.

9. Payments

(a) The Company shall issue invoices for the Subscription Amount to the Practice in advance of the period to which they relate.

(b) The Practice must pay the Subscription Amount to the Company by direct debit on or before the due date.

(c) If the Practice does not pay any amount properly due to the Company under this Agreement, the Company may, in its sole discretion, elect to charge the Practice interest on the overdue amount at the rate of 8% per annum (which interest will accrue daily until the date of actual payment and which will be compounded at the end of each calendar month) or may suspend the Practice’s access to the Software.

10. Company's confidentiality obligations

(a) The Company must:

(i) keep the Practice Confidential Information strictly confidential;

(ii) not disclose the Practice Confidential Information to any person without the Practice's prior written consent, and then only under conditions of confidentiality approved in writing by the Practice;

(iii) use the same degree of care to protect the confidentiality of the Practice Confidential Information as the Company uses to protect the Company's own confidential information of a similar nature, being at least a reasonable degree of care; and

(iv) act in good faith at all times in relation to the Practice Confidential Information.

(b) Notwithstanding clause 10(a), the Company may disclose the Practice Confidential Information to the Company's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Practice Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Practice Confidential Information.

(i) is known to the Company before disclosure under this Agreement and is not subject to any other obligation of confidentiality.

(ii) is or becomes publicly known through no act or default of the Company; or

(iii) is obtained by the Company from a third party in circumstances where the Company has no reason to believe that there has been a breach of an obligation of confidentiality.

(d) The restrictions in this clause 10 do not apply to the extent that any Practice Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Company on any recognized stock exchange.

(e) The Company shall not (and shall procure that each of the Company Parties does not) disclose in its advertising, referral or publicity material (including any electronic media) the existence of this Agreement or the terms of its relationship with the Practice without the prior written consent of the Practice (which may be withheld at the Practice’s sole and absolute discretion).

(f) The Company acknowledges that certain aspects of the Practice Confidential Information may be subject to client legal privilege. The Company shall protect the confidentiality of such Practice Confidential Information (treating the Practice other than the discloser as third parties in this context) and any request received by the Company from a third party to access such Practice Confidential Information must be referred to the Practice immediately. The Company acknowledges that to the extent any Practice Confidential Information is covered or protected by privilege, the disclosing of such Practice Confidential Information to the Company does not constitute a waiver of privilege or any other rights which the Practice or a client of the Practice may have in respect of such Practice Confidential Information.

(g) The Company agrees that damages may not be an adequate remedy for any breach by it of these confidentiality provisions and the Practice shall be entitled (without prejudice to its other rights and remedies) to the equitable remedies of injunction and specific performance.

11. ACCEPTABLE USE

11.1 General usage rules

(a) You must not use the Software in any way that causes, or may cause, damage to the Software or impairment of the availability or accessibility of the Software.

(b) You must not use the Software:

(i) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or

(ii) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

(d) You must ensure that all Privacy Laws are complied with and express consent has been obtained from Users for the collection, uploading, use and disclosure of personal and sensitive information.

11.2 Unlawful Content

(a) Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

(b) Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(i) be libellous or maliciously false;

(ii) be obscene or indecent;

(iii) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(iv) infringe any right of confidence, right of privacy or right under data protection legislation;

(v) constitute negligent advice or contain any negligent statement;

(vi) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(vii) be in contempt of any court, or in breach of any court order;

(viii) constitute a breach of racial or religious hatred or discrimination legislation;

(ix) constitute a breach of official secrets legislation; or

(x) constitute a breach of any contractual obligation owed to any person.

(c) You must ensure that content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

11.3 Factual accuracy

(a) Content must not be untrue, false, inaccurate or misleading.

(b) Statements of fact contained in content and relating to persons (legal or natural) must be true; and statements of opinion contained in content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion

11.4 Marketing and spam

(a) Content must not constitute or contain spam, and you must not use the Software to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

(b) You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Software or that you find using the Software.

11.5 Monitoring

You acknowledge that we do not actively monitor the content or the use of the Software.

11.6 Data mining

You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Software.

11.7 Hyperlinks

You must not link to any material using or by means of the Software that would, if it were made available through the Software, breach the provisions of this Agreement

11.8 Harmful software

(a) The content must not contain or consist of, and you must not promote, distribute or execute by means of the Software, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

(b) The content must not contain or consist of, and you must not promote, distribute or execute by means of the Software, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer

12. Privacy

(a) Each party shall comply with the Privacy Laws with respect to the processing of the User Personal Data.

(b) The Practice warrants that it shall not upload to the Software or otherwise disclose User Personal Data to the Company without the express consent of the User, and in complete compliance with the Privacy Laws.

(c) Notwithstanding any other provision of this Agreement, the Company may process the User Personal Data if and to the extent that the Company is required to do so by applicable laws.

(d) The Practice consents, and shall ensure that the User consents, to the use of Artificial Intelligence platforms in administering the Platform, Software and User Personal Information.

(e) The Company shall ensure that persons authorised to process the User Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(f) The Company and the Practice shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the User Personal Data.

(g) Each party shall make available to the other, upon request, all information necessary to demonstrate the party’s compliance with its obligations under this clause 12 and the Privacy Laws.

(h) The Company shall, at the choice of the Practice, delete or return all of the User Personal Data to the Practice after the provision of services relating to the processing, and shall delete existing copies, except to the extent that the Company is required to retain and store the relevant User Personal Data under applicable laws.

(i) If any changes or prospective changes to the Privacy Laws result or will result in one or both parties not complying with the Privacy Laws in relation to processing of User Personal Data carried out under this Agreement, then the parties shall use their best endeavours to promptly agree such variations to this Agreement as may be necessary to remedy such non-compliance.

13. Warranties

(a) The Company warrants to the Practice that:

(i) the Company has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(ii) the Company will comply with all applicable legal and regulatory requirements applying to the exercise of the Company's rights and the fulfilment of the Company's obligations under this Agreement; and

(iii) the Company has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

14. Acknowledgements and warranty limitations

(a) The Practice acknowledges that complex software is never wholly free from defects, security vulnerabilities, errors and bugs and, subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Software will be wholly free from security vulnerabilities, defects, errors and bugs.

(b) The Company does not warrant or represent that the Software will be compatible with any other software or systems.

(c) The Practice acknowledges that the Company will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software and, except to the extent expressly provided otherwise in this Agreement, the Company does not warrant or represent that the Software or the use of the Software by the Practice will not give rise to any legal liability on the part of the Practice or any other person.

15. Limitations and exclusions of liability

(a) Nothing in this Agreement will:

(i) limit or exclude any liability for death or personal injury resulting from negligence;

(ii) limit or exclude any liability for fraud or fraudulent misrepresentation;

(iii) limit any liabilities in any way that is not permitted under applicable law; or

(iv) exclude any liabilities that may not be excluded under applicable law.

(b) The limitations and exclusions of liability set out in this Clause 15 and elsewhere in this Agreement:

(i) are subject to Clause 15(a);

(ii) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement; and

(iii) shall not affect any liability under Clause 10 (Confidentiality) and Clause 12 (Privacy).

(c) Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings, any loss of revenue or income, any loss of business, contracts or opportunities or any special, indirect or consequential loss or damage.

16. Force Majeure Event

(a) Neither party shall be responsible for any failure to carry out any of its duties under this Agreement to the extent that the failure is directly caused by a Force Majeure Event, provided that the Affected Party:

(i) has taken all necessary steps to prevent and avoid the Force Majeure Event and, where the Affected Party is the Company, complied with all relevant disaster recovery plans;

(ii) carries out its duties to the best level reasonably achievable in the circumstances of the Force Majeure Event;

(iii) takes all necessary steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable, including actively managing any problems caused or contributed to by third parties and liaising with them;

(iv) on becoming aware of the Force Majeure Event, promptly notifies the other party (the Unaffected Party) that something has happened which is a Force Majeure Event, giving details of the Force Majeure Event, together with a reasonable estimate of the period during which the Force Majeure Event will continue; and

(v) tells the Unaffected Party when the Force Majeure Event has stopped.

(b) To the extent that the Company’s performance of the Services is materially affected by a Force Majeure Event, the Subscription Amount for the Services affected by a Force Majeure Event shall be reduced or waived by a reasonable amount to be agreed in good faith between the parties to reflect the extent and standard to which the affected Services are being provided during that period. If a Force Majeure Event results in the suspension of part or all of the Services or in the Services being provided to a level of negligible value to the Practice, the Practice shall not be liable to pay for the Services during that period.

(c) If a Force Majeure Event prevents the Affected party from materially complying with its obligations under this Agreement and it continues for more than 30 days, the Practice may terminate this Agreement with immediate effect by giving the Company notice.

17. Termination

(a) Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.

(b) Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

(i) The other party:

(A) is dissolved;

(B) ceases to conduct all or substantially all of its business;

(D) is or becomes insolvent or is declared insolvent; or

(E) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors.

(ii) An administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party.

(iii) An order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement).

18. Effects of termination[SK3] [Hicksons4]

(a) Upon the termination of this Agreement, all the provisions of this Agreement shall cease to have effect, save that provisions that necessarily survive termination of the Agreement.

(b) Notwithstanding any other provision, if payment has been made in advance, access will continue to be provided until the period paid for has expired (“access period”)

(c) Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

(d) Within 14 days following the termination of this Agreement for any reason the Practice must pay to the Company any Subscription Amount in respect of Services provided to the Practice before the termination of this Agreement.

(e) For avoidance of doubt, upon termination of this Agreement for any reason, the Practice will have no entitlement to receive a refund for any Subscription Amount paid by the Practice to the Company in respect of Services that were to be provided to the Practice after the termination of this Agreement,

(f) No data will be accessible by the Practice or Users via the Software or Platform following termination, however the Practice or User may, within 3 months of termination or the access period ending, whichever is later, request that the Company provide a copy of User Personal Data (in a form acceptable to the Company) which shall be supplied within 14 days of receipt of such a request.

19. Subcontracting

(a) Subject to any express restrictions elsewhere in this Agreement, the Company may subcontract any of its obligations under this Agreement without the consent of the Practice.

(b) The Company shall remain responsible to the Practice for the performance of any permitted subcontracted obligations.

20. NOTICES

20.1 Address for service

All notices, consents, approvals, demands and other instruments required or permitted to be served under this Agreement must, unless otherwise in this Agreement expressly provided, be in writing, signed by or on behalf of the party serving the same or by that party’s solicitor and may be served upon the party at the address below, or such alternate address as notified by one party to the other:

(a) First Party's Address:

5/48 Sandford Street Mitchell, ACT 2911

(b) Second Party's Address:

Is the address noted in the parties section, and the most recent email address of the Practice known to the Company

20.2 Service

Service will be sufficient if any such notice is:

(a) delivered personally to the party to be served;

(b) sent by ordinary pre-paid post to either the above address or to a registered office. If a notice is posted, it is deemed to have been duly served on the second Business Day after postage, or if service of the notice is to an address outside Australia, on the fifth Business Day after postage;

(c) sent by email to the last known email number of the party to be served, and will be deemed to be served at the time the email is received by the recipients server, but if the notice is sent after 5:00pm in the place of receipt or on a non-Business Day, the notice is taken to have been received at 9:00am on the next Business Day.

21. General

21.1 Entire Agreement

This Agreement constitutes the sole and entire agreement between the parties and a warranty, representation, guarantee or other term or condition of any nature not contained or recorded in this Agreement is of no force or effect.

21.2 Legal advice

Each of the parties acknowledges that they have obtained independent legal advice about the nature and effect of this Agreement and understands the full purport and effect of this Agreement.

21.3 Amendment

No variation or waiver of, or any consent to any departure by a party from, a provision of this Agreement is of any force or effect unless it is confirmed in writing signed by the parties and then that variation, waiver or consent is effective only to the extent for which it is made or given.

21.4 Assignment

No party may assign its rights under this Agreement without the consent of the other party.

21.5 No Reliance

The parties warrant that they have made their own enquiries in respect of the matters contained in this Agreement and do not rely on any representation by any party or any other person whatsoever.

21.6 No Merger

(a) Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.

(b) No provision of this Agreement which requires action by a party after completion shall merge on completion.

21.7 Waiver

The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under this Agreement.

21.8 Severance

If any provision of this Agreement is invalid and not enforceable in accordance with its terms, other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provision, are and continue to be valid and enforceable in accordance with their terms.

21.9 Further Assurance

Each party must do, sign, execute and deliver all deeds, documents, instruments and acts reasonably required of it or them by notice from another party effectively to carry out and give full effect to this Agreement.

21.10 Attorneys

Where this Agreement is executed on behalf of a party by an attorney, that attorney by executing declares that the attorney has no notice of the revocation of the power of attorney under the authority of which the attorney executes this Agreement on behalf of that party.

21.11 Counterparts

This Agreement may be executed by any number of counterparts and online or electronically and all of those counterparts taken together constitute one and the same instrument.

21.12 Remedies Cumulative

The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of any other rights, powers or remedies provided by law.

21.13 Confidentiality

Without limiting any other provision of this Agreement, the parties must maintain absolute confidentiality concerning the existence and terms of this Agreement and the business or affairs of any of the released parties and no announcement or communication relating to such business affairs or the negotiations of the parties or existence, subject matter or terms of this Agreement may be made or authorised by or on behalf of a party without the prior written approval of the other parties except that a party may make such disclosures in relation to this Agreement as may be reasonably necessary:

(a) to its professional advisers, bankers, financial advisers and financiers or to any person whose consent is required under this Agreement or for a transaction contemplated by it upon those persons undertaking to keep confidential any information so disclosed; or

(b) to comply with any applicable law or the requirement of any regulatory body.

21.14 Liability of parties

If any party to this Agreement consists of more than one person then the liability of those persons in all respects under this Agreement is a joint liability of all those persons and a separate liability of each of those persons. If any covenant or agreement given by any party to this Agreement is given jointly with any one or more other parties to this Agreement then such covenant or agreement shall also be a separate obligation of each party.

21.15 Governing law and jurisdiction

This Agreement is governed by, and is to be construed in accordance with, the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.

21.16 Relationship of the parties

Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee or representative of any other party or to create any trust relationship between them.

22. DEFINITIONS AND INTERPRETATION

22.1 Definitions

(a) Account means an account enabling a person to access and use the Software, including both administrator accounts and user accounts;

(b) Agreement means this agreement including any Schedules, and any amendments to this Agreement from time to time;

(c) Authorised Users means all persons employed or engaged by the Practice who are granted access to the Software by the Practice's administrator appointed pursuant to clause 3(b) including without limitation full time workers, temporary staff, officers, agents and subcontractors..

(d) Business Day means any weekday other than a bank or public holiday in Australia.

(e) Company Parties means the Company, its agents, advisers, consultants, contractors, subcontractors, their respective affiliates and any employee, worker or other personnel (temporary or permanent), officer, director or partner of any of them.

(f) Documentation means the documentation for the Software produced by the Company and delivered or made available by the Company to the Practice.

(g) Data includes Practice Data and User Personal Data

(h) Effective Date means the date of this Agreement.

(i) “Force Majeure Event” means an event beyond the reasonable control of a party (the Affected Party) which is not attributable to its fault or negligence, including (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars, acts of God, expropriation or confiscation of facilities, any form of government intervention, pandemics, war, hostilities, rebellion, terrorist activity, local or national emergency or sabotage..

Force Majeure Event does not include:

(i) strikes or other industrial action solely affecting employees of the Affected party or its subcontractors; or

(ii) any event affecting a subcontractor or supplier of the Affected Party, unless that event is itself a Force Majeure Event.

(j) Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

(k) Maintenance Services means the general maintenance of the Platform and Software, and the application of Updates and Upgrades.

(l) Practice Confidential Information means:

(i) any information disclosed by or on behalf of the Practice to the Company at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(ii) was marked or described as "confidential"; or

(iii) should have been reasonably understood by the Company to be confidential; and

(iv) the Practice Data.

(m) Practice Data means all data, works and materials uploaded to or stored on the Platform by the Practice, transmitted by the Platform at the instigation of the Practice, or generated by the Platform as a result of the use of the Software by the Practice (but excluding fully anonymised analytics data relating to the use of the Platform and server log files).

(n) Privacy Laws means all applicable laws relating to the collection, use and disclosure of personal and sensitive information including the Privacy Act 1988 (Clth).

(o) Platform means the platform managed by the Company and used by the Company to provide the Software, including the application and database software for the Software, the system and server software used to provide the Software, and the computer hardware on which that application, database, system and server software is installed.

(p) Services means any services that the Company provides to the Practice, or has an obligation to provide to the Practice, under this Agreement.

(q) Software means the software and platform known as Akuna which will be made available by the Company to the Practice as a service via the internet in accordance with this Agreement.

(r) Software Defect means a defect, error or bug in the Software or Platform having a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(i) any act or omission of the Practice or any person authorised by the Practice to use the Platform or Software;

(ii) any use of the Platform or Software contrary to the Documentation, whether by the Practice or by any person authorised by the Practice or a User;

(iii) a failure of the Practice to perform or observe any of its obligations in this Agreement; and/or

(iv) an incompatibility between the Platform or Software and any other system, network, application, program, hardware or software used by the Practice or a User.

(s) Subscription means a subscription to use the Software and Platform for an agreed period.

(t) Subscription Amount means the amount referred to at www.{add} from time to time as is applicable on the date immediately before a new Subscription is taken out or Subscription is renewal or such amounts as may be agreed in writing by the parties from time to time.

(u) Subscription Period means monthly unless otherwise.

(v) Subscription Renewal means a renewal that occurs by way of a Subscription rolling over into a new subscription period.

(w) Support Services means support in relation to the use of, and the identification and resolution of errors in the Software troubleshooting, guidance and tips via a helpdesk for high severity issues or ticketing with 24×7 availability but excluding the provision of training services.

(x) Supported Web Browser means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Company agrees in writing shall be supported.

(y) Term means the term of this Agreement, commencing in accordance with clause 1(a) and ending in accordance with clause 1(b).

(z) Update means a hotfix, patch or minor version update to any Platform software.

(aa) Upgrade means a major version upgrade of any Platform software.

(bb) User means a patient, customer, client or other user of the services of the Practice.

(cc) User Personal Data means any personal and sensitive information of Users that is uploaded by a User or the Practice and processed by the Company on behalf of the Practice in relation to this Agreement.

EXECUTED as an Agreement

Executed in accordance with the requirements of section 127 of the Corporations Act 2001 (Cth) by

Akuna Tec Pty Ltd

by:

)

Director

Director/secretary

Name:

Executed in accordance with the requirements of section 127 of the Corporations Act 2001 (Cth) by

Party Name acn (if any)

by:

)

Director

Director/secretary

Name:

[SK1]Does this cover me if a competitor accessed a trial and then copied items/features?

[Hicksons2]added

[SK3]Do we need something in here about longer term termination - i.e. they subscribed 1 year, they cancel after 6 months. They will still have access for the full 12 months and they wont get a refund

[Hicksons4]added