1. status of this document
(a) This SaaS Licence Agreement sets out the terms and conditions on which Neuva Pty Ltd (ACN 700 165 322 / ABN 88 700 165 322) (Neuva) agrees to grant licences to software products and services developed and owned by Neuva (each a Software Product, as defined in more detail in clause 2).
(b) This document always forms part of the legally binding contract (the Contract) between Neuva and Neuva’s customer who is granted a software licence by Neuva (the Customer).
(c) The other components of the Contract between Customer and Neuva are listed in the proposal signed by Neuva and Customer (the Proposal). Those documents apply to the exclusion of all terms in Customer’s scope of works, request for quote, terms and conditions, purchase order or similar, even if provided to Neuva after the Proposal has been signed.
(d) This SaaS Licence Agreement can only be overridden by special conditions agreed between Neuva and Customer and contained in the Proposal.
(e) Various capitalised terms are used in this SaaS Licence Agreement. Definitions are contained in clause 2 below.
(f) The latest version of this SaaS Licence Agreement can be found at www.neuva.com.au.
(g) By accessing or using a Software Product, Customer and its Authorised Users agree that they are bound by all the terms and conditions of the Contract. If Customer or any Authorised User does not agree to be so bound, they must not access or use any Software Product or Documentation in any way.
(h) Customer and its Authorised Users acknowledge that they have read this document and understand it.
2. DEFINITIONS
The following definitions apply in this SaaS Licence Agreement:
Active Worker Profile or AWP has the meaning given in clause 3.2.
Authorised User means an officer, employee, contractor or consultant of Customer who accesses and uses a Software Product with the permission of Customer.
Claim means an actual or alleged claim, cause of action, suit, proceeding, complaint, demand, right of set off, right of indemnity or other right or application for payment, relief or compensation of any type whatsoever (whether current, past or future) in respect of or in connection with any Loss.
Confidential Information in relation to a disclosing party means all of its data, trade secrets, financial, marketing and technical information, know-how and information (in any medium) regarding its technology and processes, which is confidential or of a sensitive nature. Confidential Information excludes any information which:
(a) is in the public domain;
(b) is known to the recipient at the time of receipt without breach of any confidentiality obligation by the recipient;
(c) is received from a third party without breach of any obligation by the recipient; or
(d) that is independently developed by the recipient without using the disclosing party’s Confidential Information.
Content has the meaning given in clause 11.4.
Contract means the legally binding contract between Customer and Neuva as referred to in clause 1(b).
Customer has the meaning given in clause 1(b).
Customer Data means any information relating to Customer’s business including its operations, facilities, customers, employees, assets, products, sales and transactions, its Personal Information, in whatever form the information exists, and includes any:
(a) database in which data or information is contained;
(b) documentation or records related to data or information;
(c) products resulting from the use or manipulation of data or information; and
(d) copies of the above.
Customer Premises means Customer’s premises or site as specified in the Proposal or any other location at which a Software Product is permitted to be used by Customer as agreed in writing by Neuva from time to time.
Data Breach means an unauthorized disclosure of any Customer Data, including without limitation, any eligible data breach as that term is defined in the Privacy Act 1988 (Cth).
Documentation means the printed and electronic materials relating to a Software Product as provided by Neuva to Customer or its Authorised Users, including user guides, reference documents, training documents, marketing materials and technical documents.
Good Industry Practice means the exercise of that degree of care, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected at such time from a skilled and experienced provider of products that are of the same or similar nature to the products provided under this SaaS Licence Agreement.
Intellectual Property means any subject matter, whether tangible or intangible, the subject of Intellectual Property Rights.
Intellectual Property Rights means all rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields, including in relation to copyright, attribution, authorship, inventions (including patent rights), marks (including registered and unregistered trade marks), designs (registered and unregistered), brands, software, source code, confidential information (including trade secrets), know-how and circuit layouts. These rights include:
(a) all rights in all applications to register such rights; and
(b) all renewals and extensions of such rights.
Licence has the meaning given in clause 3.1.
Licence Fee means the fees payable by Customer to Neuva in respect of the grant of a Licence to Customer, as referred to in clause 5.
Licence Term has the meaning given in clause 4.
Loss means an expense, cost, debt, loss, judgement, enforceable award or damage of any kind whatsoever, whether in contract, equity, tort, at common law or otherwise, including (but not limited to) direct, indirect, punitive, special or consequential loss, personal injury, property damage, reputational injury, loss of goodwill, computer failure or malfunction, loss of data, loss of profit, loss of sales, lost business expenditures, loss of investments, loss from breached commitments in connection with any business, loss of use, stoppage or interruption of business, costs of procurement of substitute goods or services or breach of any intellectual or proprietary rights of any third parties.
Malicious Code means a virus, bomb, trojan horse, worm or other malware or computer programming code, including source and object code, which is intended to impair, deny or otherwise adversely affect the use of a Software Product or which has the effect or purpose of permitting unauthorized access to a Software Product.
Neuva means Neuva Pty Ltd (ACN 700 165 322 / ABN 88 700 165 322).
Output means the reports, evaluations, databases, analyses, documents and metrics generated by a Software Product in relation to Customer and its Authorised Users, but does not include the Documentation.
Personal Information means any information that Neuva collects, receives or obtains from or on behalf of Customer or any of its personnel that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual’s name, address, social security number, etc and any other information relating to an identified or identifiable individual, including, information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.
Privacy Laws means the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other Australian law, legislation or regulation relating to data protection, privacy or confidentiality of Personal Information.
Proposal means the most recent proposal signed by Neuva and Customer which sets out the Software Products and services that Neuva will provide to Customer in exchange for payment to Neuva of Licence Fees and other charges by Customer.
SaaS Licence Agreement means this document, which forms part of the Contract.
Scope of Works means the scope of works document referred to in the Proposal and which forms part of the Contract.
Software Defect means a defect or malfunction in a Software Product not caused by the improper use, alteration or damage of or to the Software Product by Customer or an Authorised User which has been acknowledged in writing by Neuva to cause the Software Product to not perform according to Neuva’s published specifications for the Software Product, verified as such using Neuva’s test software and procedures.
Software Product means proprietary software technology owned by Neuva and specified in the Proposal provided to Customer by Neuva, in any media or format, and including all associated or embodied Intellectual Property, software code, source code, object code, binary code, executable code, modules, components, dynamic link libraries, executable programs, architectural models, process models, object models, database schemas, accompanying or associated media, business rules, algorithms, configurations, backups, updates, service packs, patches and hot fixes.
Sub-processor means a third party service provider engaged by Neuva to perform or deliver part of a Software Product, including processing Personal Information of Worker.
Worker means Customer’s workers, employees and contractors (current or prospective).
3. Grant of Licence
3.1 Grant
(a) Subject to payment by Customer of the Licence Fees, Neuva grants to Customer and its Authorised Users a limited, non-exclusive, royalty-free, non-transferable, revocable licence (the Licence) to access and use:
(i) the Software Products referred to in the Proposal issued to Customer; and
(ii) the Documentation for those Software Products,
solely for Customer’s lawful use during the Licence Term in accordance with the Contract.
(b) The Licence is not a sale of a Software Product or the Documentation.
(c) The Licence does not include any right to sublicense any Software Product or Documentation.
3.2 Active Worker Profiles
(a) An AWP or Active Worker Profile is a distinct record stored within a Software Product and relating to a unique individual Worker.
(b) The Licence is limited to the number of AWP’s as stated in the Proposal.
(c) The number of AWP’s permitted by a Licence excludes AWP’s that are inactive.
(d) An AWP can be inactivated by Customer through the user interface of a Software Product.
(e) Customer is responsible for activating and deactivating AWP’s through the user interface of a Software Product.
(f) AWP’s are counted once for the purposes of this clause 3.2, irrespective of the number of Software Products that have been licensed by Customer.
(g) Neuva will monitor AWP usage by Customer, and if the number of AWP’s used by Customer during a month exceeds the licensed number of AWP’s (as determined by Neuva acting reasonably) then the new level of AWP’s shall be deemed to have been licensed by Customer and that new AWP level will apply for that month and subsequent months until otherwise agreed in writing by Neuva.
(h) If additional AWP’s are deemed licensed by Customer under this clause 3.2 or otherwise need to be licensed by Customer, Customer must pay to Neuva Licence Fees as stated in the Proposal for those additional AWP’s. Neuva will invoice Customer for amounts owed to Neuva (including for prior months) and Customer must pay those invoices in accordance with clause 5.
3.3 Authorised Users
(a) The Licence is limited to Authorised Users of the Customer using the Software Products.
(b) Customer must not permit persons who are not Authorised User to access or use the Software Products.
(c) Customer is responsible for activating and deactivating Authorised Users through the user interface of a Software Product.
4. Licence TERM
4.1 Neuva Software Products
The term of the Licence (Licence Term) granted under clause 3 for a Software Product:
(a) commences from the date of the Proposal (or such other commencement date stated in the Proposal);
(b) is initially the minimum Licence term as stated in the Proposal;
(c) can be renewed for further and consecutive periods (monthly or yearly, as applicable) after the minimum Licence term ends by paying the periodic Licence Fee per month or per year, as applicable, as stated in the Proposal (or as otherwise agreed with Neuva);
(d) is automatically extended by the period if the payment is made by Customer as referred to in clause 4.1(c); and
(e) expires after the minimum Licence term if the Licence Term is not renewed as referred to in clause 4.1(c).
5. Licence Fees AND PAYMENT
5.1 Payment obligation
(a) Customer agrees that it will pay to Neuva the Software Product licence fees stated in the Proposal, and also as referred to in clause 3.2, (together the Licence Fees) at the time and frequency as stated in the Proposal or as required by this SaaS Licence Agreement.
(b) Customer agrees that, unless expressly stated otherwise in the Proposal, the Licence Fees stated in the Proposal only apply during the initial Licence Term. Neuva is entitled to renegotiate the Licence Fees at the time of each renewal of the Licence.
(c) All Licence Fees are in Australian dollars unless expressly stated otherwise on the Proposal.
(d) All tax invoices issued by Neuva to Customer must be paid in full notwithstanding any counterclaim or set-off Customer may make.
5.2 Taxes and GST
(a) Customer must pay to Neuva, on each date Customer must make payment for a taxable supply under this SaaS Licence Agreement, an additional amount equal to the GST payable on the- taxable supply or component of the supply for which that payment is made. Neuva will indicate on the Proposal whether GST is payable.
(b) Neuva must give Customer a tax invoice for supplies under this SaaS Licence Agreement on or before each payment date referred to above.
(c) In this SaaS Licence Agreement:
(i) GST, supply, taxable supply and tax invoice have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999; and
(ii) a reference to payment being made or received includes a reference to consideration other than money being given or received.
(d) Customer agrees to pay all taxes, duties, levies or imposts related to goods or services provided to Customer.
5.3 Late Payment
(a) If Customer does not pay a Licence Fee when due under this SaaS Licence Agreement, Neuva is entitled to charge Customer a 12% per annum interest charge, calculated daily and payable monthly.
(b) Neuva reserves the right to suspend access to a Software Product or terminate this SaaS Licence Agreement in accordance with clause 16 if Licence Fees have not been paid when due under this SaaS Licence Agreement.
6. Permitted Uses
6.1 Use and Access of Software Products
Customer may, subject to this SaaS Licence Agreement and the restrictions or limitations (if any) stated on the Proposal:
(a) install, use, access, display, run or otherwise interact with the licensed Software Product on Customer’s computers and network for Customer’s internal business use, including for labour-hire and field workforce management;
(b) subject to clause 7, provide access to and use of the licensed Software Product and Documentation to Authorised Users;
(c) customise the licensed Software Product as permitted by this SaaS Licence Agreement or the Scope of Works; and
(d) use, copy or prepare derivative works based on the Documentation and redistribute the customised documentation for Customer’s internal business use, provided this is done in accordance with this SaaS Licence Agreement.
6.2 Copying of Software Products
Customer may only copy a licensed Software Product as part of Customer’s routine internal backup, archiving and disaster recovery purposes. No other copying of any Software Product is permitted.
6.3 Evaluation licences
If a Software Product has been made available to Customer by Neuva for evaluation or demonstration purposes, then all use of the Software Product and Documentation by Customer and its Authorised Users is limited solely to evaluation, demonstration and test purposes for the evaluation term specified in the Proposal.
7. supervision of authorised Users
(a) Customer is responsible for the use, supervision, management, and control of its and its Authorised Users’ use of every Software Product, all Output and all Documentation, including determining the appropriate uses of the Software Products and Documentation.
(b) If an Authorised User is a contractor of Customer (not an employee or officer of Customer), Customer must ensure that the contractor is using the Software Products and Documentation exclusively for the sole benefit of Customer.
8. privacy and PERSONAL INFORMATION
8.1 Compliance with Privacy Laws
(a) Neuva must, in respect of Personal Information of Customer or its personnel, comply with the Privacy Laws and not do anything that would cause Customer or Neuva to breach the Privacy Laws.
(b) Neuva agrees that it must:
(i) comply with Neuva’s Privacy Policy as published on its website from time to time;
(ii) handle Customer Data that is Personal Information only for the purpose of performing its obligations under the Contract or as required by Privacy Laws;
(iii) prior to disclosing any Customer Data that is Personal Information as required by law, promptly notify Customer in writing and use all reasonable steps not to disclose that information;
(iv) take all reasonable steps to ensure Customer Data that is Personal Information is protected from misuse, interference and loss and from unauthorised access, modification or disclosure;
(v) except as a necessary consequence of providing agreed hosting services, not transfer, disclose or access, or allow any person to transfer, disclose or access, Customer Data that is Personal Information outside of the jurisdiction in which the Personal Information is initially stored without Customer's prior written consent; and
(vi) use reasonable efforts to promptly notify Customer of any contact made to Neuva concerning Customer Data that is Personal Information by any individual to whom the Personal Information relates.
(c) On reasonable written request, and no more than once a year unless required by a regulator or following a Data Breach, Neuva will provide the Customer with the information reasonably necessary to demonstrate compliance with this clause 8.1. The parties will treat any such information as confidential.
8.2 Return or destruction of Personal Information
Except as required by law, Neuva must return to Customer or, at Customer's option and cost, delete or destroy, materials and records in Neuva’s possession or control which contain Customer Data that is Personal Information:
(a) when Customer Data that is Personal Information is no longer required by Neuva for the purposes of the Contract;
(b) on expiry or termination of this SaaS Licence Agreement; or
(c) on demand in writing by Customer.
8.3 Data breaches
(a) Neuva must promptly notify Customer if it becomes aware that there are reasonable grounds to believe there has been a Data Breach or to suspect that there may have been a Data Breach.
(b) Neuva must provide Customer with full details of, and all reasonable assistance requested by Customer to investigate or mitigate against the effects of, any Data Breach or suspected Data Breach.
(c) Neuva must not notify any Data Breach or suspected Data Breach (whether or not an 'eligible data breach' under the Privacy Act 1988) to the Australian Information Commissioner or any other person without Customer's prior written consent, unless such notification is required by law. Where Customer does not grant that consent, Customer will be responsible for making any notification of the Data Breach required by any Privacy Laws.
(d) If Neuva has caused a Data Breach in breach of this SaaS Licence Agreement, Neuva must pay the direct costs and expenses (as demonstrated by tax invoices and receipts) incurred by Customer of issuing mandatory notifications and undertaking and implementing mandatory rectification procedures as required under the Privacy Act 1988.
8.4 Privacy and Security requirements
(a) Neuva must ensure that all Customer Data in its possession or control is protected at all times from unauthorised access or use by a third party or misuse, damage or destruction by any person.
(b) Neuva must provide protective measures for Customer Data in Neuva 's possession or control that are no less rigorous than Good Industry Practice, including:
(i) maintaining an effective security program and safety and physical and technical security policies and procedures; and
(ii) providing technical and organisational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer or co-mingling of any Customer Data.
8.5 Sub-processors
(a) The Customer authorises Neuva to engage the Sub-processors listed in the Proposal to process Personal Information provided by Customer to Neuva for the purposes described in the Proposal.
(b) Neuva agrees to use commercially reasonable efforts to impose data protection obligations on each Sub-processor that are substantially consistent with this SaaS Agreement.
(c) Neuva agrees to give the Customer reasonable notice of any intended addition, removal or replacement of a Sub-processor.
(d) The Customer may object to Neuva's appointment or replacement of a Sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to the Customer's ability to comply with applicable Privacy Laws. In such event, Neuva will either not appoint or replace the Sub-processor or, if this is not possible, the Customer may terminate the Contract (without prejudice to any fees incurred by the Customer prior to termination).
8.6 Customer’s obligations
(a) The Customer must comply with all Privacy Laws applicable to the collection, storage, retention and transmitting of Personal Information, including in relation to providing to Neuva Personal Information of or relating to Workers.
(b) The Customer must ensure that it has given Workers all notices required under, and has obtained all consents required, under all Privacy Laws.
(c) The Customer must not provide Neuva with Personal Information of a Worker that is not reasonably necessary for Neuva to provide the Software Products to the Customer.
(d) The Customer acknowledges that the Software Products are not designed to hold financial identifiers such as tax file numbers or bank account details, and the Customer must not upload such data to the Software Products.
(e) The Customer is responsible for the accuracy of all Personal Information of Workers that Customer provides to Neuva.
(f) All instructions given by the Customer to Neuva in relation to a Worker’s Personal Information shall be made in writing and shall at all times be in compliance with Privacy Laws.
9. confidentiality
Neuva and Customer each agree to:
(a) keep the other party’s Confidential Information and Intellectual Property strictly confidential and not to disclose that Confidential Information or Intellectual Property to any other person (other than an officer or employee with a need to the information) without the prior written consent of the disclosing party;
(b) not use the other party’s Confidential Information or Intellectual Property for any purpose other than the performance of its obligations and exercise of its rights under the Contract; and
(c) not use the other party’s Confidential Information or Intellectual Property in a manner that may be detrimental to the disclosing party.
10. Artificial intelligence
(a) Customer acknowledges that the Software Products use and have automated and artificial intelligence features, including to read and extract information from uploaded compliance documents and to support workforce readiness and matching. These features process Personal Information in accordance with Neuva's Privacy Policy as published on its website.
(b) Neuva agrees that it must not use Personal Information provide by Customer to train generative artificial intelligence models for use outside of the Customer's own tenant, and must not permit Neuva’s Sub-processors to do so.
(c) Neuva’s privacy Policy published on its website also contains terms dealing with use of artificial intelligence features by Neuva.
11. ip Ownership, logos, ETC
11.1 Ownership of Neuva’s IP
(a) Customer agrees that Neuva owns all Intellectual Property Rights in and to all Software Products and the Documentation, including all associated or included Intellectual Property.
(b) Any suggestions, ideas, enhancement requests, feedback, recommendations, templates or libraries Customer or its Authorised Users provides to or jointly develops with Neuva that becomes incorporated in a Software Product shall belong solely to Neuva.
(c) Customer must not:
(i) distribute, sub licence or otherwise transfer all or any part of a Software Product or Documentation to any other person;
(ii) grant any security interest over any Software Product; or
(iii) lodge any patent application or any other application for the statutory or registered protection of Neuva’s Intellectual Property.
11.2 Logos and marks
(a) This SaaS Licence Agreement does not grant Customer or its Authorised Users any right to use the Neuva name, the Neuva logo or the product names associated with Software Products without prior written permission from Neuva.
(b) Customer agrees to include in any works derived from the Documentation all of Neuva’s logos, copyright notices and trademarks appearing in the Documentation as originally provided to Customer.
(c) Customer must not remove or alter any copyright notice, trademark or logo used by Neuva in connection with any Software Product.
11.3 Modification, derivative works, etc
Except as otherwise permitted under this SaaS Licence Agreement, Customer must not:
(a) alter, customise, modify or create derivative works of any Software Product;
(b) attempt to disassemble, decompile or otherwise reverse engineer the Software Product, except as permitted by the Copyright Act 1968 (Cth);
(c) alter or modify any disabling mechanisms which may be resident in a Software Product or mechanisms that control access to, or use of, a Software Product; or
(d) permit a Software Product to be combined with or incorporated in other software without the prior written consent of Neuva (which Neuva, at its discretion, may refuse to give or may give on such conditions as Neuva, at its discretion, determines).
11.4 Ownership of Customer Data, Content and Output
(a) All information and data used or processed by a licensed Software Product (Content) is the property of the applicable Content owner, and this SaaS Licence Agreement does not grant Customer or Neuva any ownership rights with respect to Content owned by Customer, Neuva or third parties.
(b) As between Customer and Neuva, Customer owns all Customer Data on and from creation (including all Intellectual Property Rights in Customer Data).
(c) Neuva agrees that provided all Licence Fees have been paid to Neuva by Customer as required by this SaaS Licence Agreement, all Output shall be owned by Customer from the date such payment is received but that the Output may only be used for Customer’s internal business purposes.
12. hosting of software products
12.1 SaaS /cloud services; hosting
(a) Neuva will install and maintain the Software Products on servers and hardware and using software and hosting services as determined by Neuva in accordance with Good Industry Practice and the timeframes and requirements stated in the Scope of Works and the Proposal.
12.2 Hosting location
(a) Neuva will host the Software Products in Australia. Personal Information provided by Customer will only be disclosed to, or be accessible from, a recipient outside of Australia as set out in Neuva’s Privacy Policy as published on its website.
13. iMPLEMENTATION AND configuration services
13.1 Implementation, Configuration Services
(a) If the Proposal provides that Neuva will provide any implementation and configuration services with respect to a Software Product, Neuva will provide those services on the basis as set out in the Proposal and Scope of Works and this SaaS Licence Agreement.
(b) With respect to implementation and configuration services provided by Neuva, the Customer is responsible for:
(i) co-ordinating the provision of new carrier services or the re-configuration of existing carrier services;
(ii) co-ordinating all Customer-engaged third party suppliers, including ensuring compliance of the third parties to the Scope of Works;
(iii) providing all Customer configuration data in agreed formats at the times agreed between Neuva and the Customer;
(iv) ensuring remote access by Neuva is available at the time of configuration and programming works; and
(v) providing such assistance as Neuva reasonably requires to ensure satisfactory implementation and configuration of the Software Products.
(c) Customer agrees to pay all fees, costs and charges stated in the Proposal in respect of implementation and configuration services provided by Neuva.
(d) If Neuva arranges or procures services or materials needed to undertake installation and configuration of a Software Product (including any software or hardware) and the costs of that are not expressly stated to be included in the Licence Fees stated on the Proposal, such costs shall be paid for by Customer in addition to the Licence Fees.
14. Internet access and infrastructure Environment
(a) Customer must ensure it uses internet browsers and other interfaces used to access and operate the Software Products that comply with Neuva’s reasonable recommendations, including all specifications, hardware and software requirements set out in the Proposal or in the Scope of Works.
(b) Customer shall not, and shall not allow any person to, perform changes to Customer’s domain, assigned IP addresses, MS Exchange settings, database settings, tables and database environment, server hardware and software environment associated with the installation location of Software Products without the prior written consent of Neuva.
(c) Failure to comply with clause 14(b) above may require Neuva to re-configure the Software Products and the time and materials involved in the effort must be paid by Customer at Neuva’s then applicable rates.
15. Telecoms, Security, backups
15.1 Telecommunications
(a) Customer is responsible for installing, configuring and maintaining at its cost all telecommunications and internet connections and networks within its office and sites and to servers in external data centres and sites.
(b) Customer acknowledges that:
(i) it is responsible for ensuring that its telecommunications infrastructure and services have adequate speed, bandwidth and latency characteristics to ensure adequate performance of the Software Products;
(ii) the performance of Software Products will decrease with slower telecommunications speeds or reduced bandwidth;
(iii) the performance of Software Products may be impacted if telecommunications lines are shared with other users or other applications; and
(iv) it may not be practical to transmit documents from Customer Premises with low communication speeds and/or where the bandwidth utilisation is high and where documents are large in size.
15.2 Backups
Customer is responsible for establishing adequate internal backup and recovery systems, including in respect of Customer Data, to prevent adverse consequences if a Software Product malfunctions.
15.3 Security
(a) Customer is responsible for:
(i) maintaining adequate internal security measures and systems to prevent unauthorised or inappropriate use of the Software Products; and
(ii) ensuring the security of user names and passwords that Neuva provides to Customer or its Authorised Users, including ensuring that Authorised Users do not disclose user names and passwords to persons that are not officers or employees of Customer.
(b) Without limiting Customer’s obligations in this clause 15, Customer must comply with the following in relation to access to and use of Software Products:
(i) Neuva’s reasonable data security policies made available to Customer from time to time; and
(ii) Neuva’s reasonable directions relating to the security and integrity of Neuva or Customer’s computer systems.
15.4 Malicious Code
Customer must:
(a) not insert or activate, or permit a third party to insert or activate, any Malicious Code into Customer’s systems used for accessing the Software Products, or into Neuva’s systems, at any time, including upon termination of this SaaS Licence Agreement; and
(b) take reasonable commercial measures to protect Customer’s computer systems, and ensure each Authorised User takes reasonable commercial measures to protect the Authorised User’s computer systems, against any Malicious Code. Reasonable commercial measures includes using up to date anti-virus software and firewalls.
16. Termination of Licence
16.1 Expiry
If the Contract is not terminated sooner, the Licence expires on the last day of the Licence Term as stated in the Proposal or determined in accordance with clause 4 or subsequent variation issued by Neuva to Customer.
16.2 No fault termination
(a) Customer may terminate the Licence without cause at any time by giving written notice to the other party, and the required notice period shall be the then applicable unexpired portion of the Licence Term.
(b) Except as provided in this SaaS Licence Agreement or as required by law, no refund of Licence Fees shall be given by Neuva for early termination of the Licence.
16.3 Termination for default
Neuva may terminate the Licence and/or the Contract if:
(a) it has issued a notice of default to Customer and the default alleged therein remains unrectified for 14 days after service of the default notice; or
(b) if permitted by law, Customer goes into liquidation, has a receiver or manager or administrator appointed, is declared bankrupt or insolvent or makes composition with its creditors.
16.4 Required actions on termination
On termination or expiry of the Licence and/or the Contract:
(a) Customer and its Authorised Users must immediately cease access and use of the Software Products and the Documentation;
(b) Customer must uninstall, delete and remove all Software Products, Documentation, and also Neuva’s Confidential Information or Intellectual Property, installed or stored on Customer’s computer systems, in any form including any whole or partial copies, modifications or merged portions;
(c) Customer and its Authorised Users must promptly deliver to Neuva all material and information made available by Neuva to Customer in tangible form, including all installation media, Documentation and all Confidential Information of Neuva; and
(d) Customer and its Authorised Users must clear all client side data caches used by or relating to any Software Product.
16.5 Effect of termination
If the Licence and/or Contract is terminated, termination will not affect the rights or obligations which have accrued up to the date of termination or any other rights and obligations which under the terms of this SaaS Licence Agreement are expressed to survive such termination or by their nature survive termination. In particular, clauses 5, 11, 16.4, 16.5, 17, 19, 21, 23 and 25 survive such termination.
17. indemnity for IP infringement
(a) Neuva agrees to indemnify and hold harmless Customer from and against direct expenses, charges, costs, judgements or enforceable awards sustained or incurred by Customer arising out of or in connection with an allegation that the Software Products infringes the Intellectual Property Rights of a third party.
(b) The indemnity given in clause 17(a) will not apply to the extent of any expense, charge, cost, judgement or enforceable award which is directly caused or contributed to by Customer or its personnel.
(c) If any person makes any claim alleging that any of the Software Products infringes any Intellectual Property Rights of any person or makes a claim for indemnification coverage, Customer must promptly notify Neuva, not make any admissions without Neuva’s written consent, permit Neuva to control any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim, and cooperate with, assist and act at all times in accordance with the reasonable instructions of Neuva in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
(d) If Neuva’s Intellectual Property, or any part thereof, is held to infringe a copyright or patent, or result from the misappropriation of a trade secret, or in Neuva’s opinion, is likely to infringe a copyright or patent or result from the misappropriation of a trade secret, Neuva shall:
(i) procure for Customer the right to continue using Neuva’s Intellectual Property;
(ii) replace or modify Neuva’s Intellectual Property with technology having substantially similar functionality; or
(iii) refund to Customer the unearned portion of any fee paid by Customer for use of Neuva’s Intellectual Property.
18. Warranties and Exclusions
18.1 Neuva Warranties
Neuva represents and warrants that:
(a) it has all rights, title, licences, permits and approvals to lawfully supply the Software Products, and that it will comply with all applicable laws in the performance of its obligations under the Contract;
(b) it has used all reasonable efforts to ensure that the Software Products are free from Malicious Code; and
(c) it will not, nor will it suffer or permit any third party under its direction or control to deliberately or negligently introduce into Customer’s systems any Malicious Code.
18.2 Exclusion
(a) The Software Products and Documentation are licenced to Customer on an "as is" basis and, to the maximum extent permitted by law, without any warranties of any kind, either express or implied, other than as contained in clause 18.1.
(b) Neuva does not warrant that:
(i) Customer’s use of the Software Products will be uninterrupted or error-free or free from unauthorised access or interruption by external parties; or
(ii) Software Defects or SaaS incidents will be corrected or resolved; or
(iii) the Software Products and Documentation are free of any harmful components.
18.3 Customer acknowledgements
Customer warrants and acknowledges that:
(a) the Software Products are not fault tolerant and are not designed or intended for use in environments that require failsafe performance, in insurance underwriting, with critical health and safety or online control equipment in hazardous environments;
(b) Customer has relied on Customer’s own skill and experience and judgment in deciding to licence the Software Products and Documentation and to verify that the Software Products meet Customer’s requirements; and
(c) no oral or written information or advice given by Neuva or any of Neuva’s officers, employees, agents, distributors, affiliates or related bodies corporate shall create any warranty from Neuva.
19. Limitations, releases and indemnity
19.1 Release
(a) Subject to clauses 19.1(b), 19.4 and 21, Customer and each Authorised User releases and forever discharges Neuva, its officers, employees, agents and contractors (the Released Parties and each a Released Party) from all liability in respect of all Claims for Loss arising out of or relating to any of the following:
(i) the Contract,;
(ii) the use, inability to use, performance or non-performance of any Software Products, Documentation and/or related products and services, including, without limitation, the retrieval and downloading of content or other information by the Software Products or any decision made or action taken by Customer or any other entity in reliance thereon,
EXCEPT to the extent such Loss is caused by a breach of the Contract by Neuva or the negligence or wilful misconduct of Neuva, its officers, employees, or agents.
(b) To the maximum extent permitted by law, Customer and each Authorised User agrees that if Neuva is in breach of the Contract Neuva shall be entitled, at its discretion, to correct that breach by:
(i) correcting and resupplying the Software Products and Documentation in compliance with the Contract;
(ii) supplying a workaround for the Software Products; or
(iii) refunding the Licence Fees paid by Customer for the Software Products and Documentation provided that in those circumstances the Licence will be treated as terminated.
19.2 Cap on liability
Notwithstanding anything else in any component of the Contract, and without limiting Neuva’s rights under clause 19.1(b), Customer and each Authorised User agree that Neuva's total cumulative liability for all Claims for Loss arising out of or relating to any of the following:
(a) the Contract; and
(b) the use, inability to use, performance or non-performance of any Software Products, Documentation and/or related products and services, including, without limitation, the retrieval and downloading of content or other information by the Software Products or any decision made or action taken by Customer or any other entity in reliance thereon,
shall not exceed the sum of the Licence Fees by Customer pursuant to the Contract.
19.3 Indemnity
Customer agrees to indemnify, defend and hold harmless each Released Party from and against any and all Claims for Loss of any kind whatsoever (along with legal fees and litigation costs) arising directly or indirectly out of, resulting from, or in connection with Customer’s use or misuse or non-use of a Software Product or Documentation or Customer’s breach of the Contract or the negligence or wilful misconduct of Customer, its Authorised Users, officers, employees, or agents.
19.4 Consequential Loss
Notwithstanding anything else in the Contract, Neuva and Customer shall each not be liable to any party, person or entity for any indirect, special, incidental or consequential damages (including without limitation damages resulting from loss of profits or revenue, loss of use or reliance on a Software Product, information provided or of any executable programmes, loss of use of data or equipment or other like damage), arising out of or in connection with the Contract, including in connection with the use or inability to use a Software Product or otherwise.
20. Force Majeure
Neuva and Customer shall each not be respectively liable for any delay or failure in the performance of obligations under the Contract that arise out of causes beyond their control, including but not limited to electrical outages, internet, communications or computer failures, acts of god, fires, floods, epidemics, riots, strikes, embargoes, earthquakes, severe weather, war, governmental action, and acts or omissions of subcontractors or third parties.
21. Effect of State and federal Law
A limitation or exclusion of liability in the Contract may not apply to Customer where prohibited by statute. Customer may have other legal rights that vary from state to state or by jurisdiction. In particular, Neuva does not exclude or limit the application of the Competition and Customer Act 2010 (Cth) where to do so would contravene that statute or cause any part of the Contract to be void.
22. Export of a software product
Customer must not export or re-export any Software Product, Documentation or any underlying information or technology except with the written permission of Neuva and in full compliance with all Australian, United States of America and/or other foreign laws and all other applicable laws and regulations.
23. Dispute Resolution
(a) If any dispute arises between the parties about any matter the subject of or related to the Contract, Neuva and Customer agree to negotiate in good faith to resolve the dispute and, if desirable to obtaining a resolution, involve an executive officer of each Customer and Neuva directly in those negotiations.
(b) If the dispute has not been resolved by those negotiations within 30 days, the parties must refer the dispute to the Australian Commercial Disputes Centre Limited (ACDC) for mediation in accordance with the Mediation Guidelines of ACDC which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which guidelines are deemed to be included in this SaaS Licence Agreement.
24. Remedies
The Customer agrees that any breach of this SaaS Licence Agreement by Customer may cause irreparable damage to Neuva and that, in the event of such breach, in addition to any and all remedies at law, Neuva shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or undertaking or proving injury as a condition for relief.
25. General
(a) This Contract will be governed by the laws of Australia and the laws of the State of Western Australia. To the maximum extent permitted by law, any action or proceeding brought by Neuva, Customer or any Authorised User shall be brought only in a state or federal court of competent jurisdiction located in Western Australia and Neuva and Customer and each Authorised User submits to the jurisdiction of such courts for the purposes of any action or proceeding.
(b) The Contract will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(c) Neuva and Customer are independent contractors without authority to bind each other by contract or otherwise and neither party is the other’s agent or employee by virtue of the Contract.
(d) Customer agrees that Neuva may use information provided to Neuva by Customer or gathered by Neuva in connection with Customer’s use of a Software Product, including information concerning configuration, installation or deployment of a Software Product, for Neuva’s technical development, product development, marketing and support purposes, provided that Neuva will not disclose any information that is identifiable as information relating to Customer.
(e) Any failure by Neuva, Customer or any Authorised User to strictly enforce any provision of the Contract will not operate as a waiver of that provision or any subsequent breach of that provision.
(f) Headings shall not be considered in interpreting the Contract.
(g) If any term of the Contract is deemed to be unlawful or unenforceable that term will be severed from the Contract (to the extent of the unenforceability) and all other terms will remain in force.
(h) In the Contract words importing the singular shall include the plural and vice versa; words importing natural persons shall include corporations, trusts, partnerships and any business entity of any nature; where a party to the Contract consists of two or more persons the obligations of such persons under the Contract shall be joint and several; and the obligations of the parties shall be binding on their successors in title, assigns or legal personal representatives.
26. PrOfessional, consulting AND Training services
Neuva provides professional consulting services, data migration services and training services as set out in the Proposal and/or a separate Professional Services Agreement entered into between Neuva and the Customer.
27. Support provided by Neuva to Customer and its Authorised Users
Neuva provides email, chat, telephone and in-person support services to Customer and its Authorised Users in relation to use of Software Products as set out in the Proposal and/or a separate Support Services Agreement entered into between Neuva and the Customer.