Terms and Conditions

1. Software licence

1.1 Licence

SWOOP grants to Customer a non-exclusive, non-transferable, non-sublicensable, worldwide licence for the Term for Customer Users to use the Services in accordance with the terms of this Agreement.

1.2 Restrictions

Customer must:

(a) comply with, and ensure Customer’s Representatives comply with, all applicable laws and SWOOP’s reasonable directions in relation to use of the Services;

(b) unless otherwise permitted by law, not and must not allow any other person to, modify, translate, decompile, disassemble, reverse engineer, copy or otherwise attempt to derive the source code of the Software or create a derivative work of the Software or Documentation;

(d) report to SWOOP promptly any suspected or unauthorised use of any of the Software or Documentation of which Customer becomes aware.

1.3 Acknowledgements

Customer acknowledges and agrees that:

(a) SWOOP’s provision of the Software and the Services requires Customer to have all necessary licences for the Data Sources;

(b) the Services do not include the provision of the Data Sources;

(c) SWOOP will not be liable for any failure to provide any part of the Services to the extent such failure is caused by the unavailability of the Data Sources or any APIs associated with the Data Sources which SWOOP utilises to provide the Services;

(d) the Software may not be error-free;

(e) unless otherwise agreed SWOOP will not be retaining or performing any analytics on User Interaction Data that is older than 2 years, and once User Interaction Data is older than 2 years it may be deleted.

(f) SWOOP makes no warranty in respect of any Customer Data; and

(g) Customer must ensure that the Customer Users comply with the terms of this Agreement and Customer is liable for any breach of this Agreement by a Licensed User as if it were a breach by Customer.

2. Installation

2.1 The SWOOP Analytics Platform will be implemented on a SWOOP-managed Microsoft Azure instance. The Software will be provided to Customer within thirty (30) days of this Agreement being signed by the last party.

2.2 SWOOP is not liable for any delays in the installation or operation of the Software to the extent caused or contributed to by delays in the Customer meeting its obligations pursuant to this Agreement, delays in access to the Data Sources or other causes outside SWOOP’s reasonable control.

3. Software Support Services

3.1 Software Support Services period

(a) SWOOP will begin providing the Software Support Services after the Software has been installed and is fully operational (Support Start Date) during Business hours.

(b) SWOOP will provide the Software Support Services from the Support Start Date until the end of the Term.

3.2 Software Support Services

(a) SWOOP will, as part of the Services and at no additional cost to Customer, provide Customer with SWOOP's standard customer support services during Business Hours.

(b) SWOOP will use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(i) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am Sydney time;

(ii) unscheduled maintenance performed outside Business Hours, provided that SWOOP has used reasonable endeavours to give Customer at least 8 Business Hours’ notice in advance; and

(iii) unscheduled maintenance at any time to address emergencies or material issues with the Services.

(c) Administrators may request technical support relating to the Services by raising a support ticket in SWOOP’s Customer Portal (https://support.swoopanalytics.com)

(d) In addition, Users can participate in the SWOOP Users and Friends group on LinkedIn. SWOOP monitors the group, but does not guarantee any response time for issues raised.

(e) SWOOP will use reasonable endeavours to ensure that 80% of support tickets raised in accordance with clause 3.2(c) of this Order Form will be responded to within eight (8) Business Hours, excluding requests that are caused by Microsoft including Microsoft APIs.

4. Data security and access requirements

(a) Customer Data remains the property of Customer at all times. Customer grants to SWOOP a non-transferable, non-exclusive, royalty-free licence to store and use the Customer Data (including any Intellectual Property Rights in the Customer Data) for the purpose of the performance of SWOOP’s obligations and exercise of SWOOP’s rights under this Agreement.

(b) SWOOP may remove any Customer Data hosted by SWOOP where SWOOP reasonably believes it is appropriate to mitigate or avoid liability to a third party or under applicable law.

(c) The parties agree that Customer Data is Confidential Information of the Customer and SWOOP must comply with clause 8 these Terms and Conditions in respect of that information.

(d) Each party must comply with all Privacy Laws in respect of any Personal Information that party collects, uses or discloses in connection with this Agreement.

(e) Customer must ensure that it has all required consents for the provision of and use by SWOOP in accordance with this Agreement of all Customer Data including any Personal Information included in such Customer Data.

(f) For the purposes of any Privacy Laws that draw a distinction between a data controller and a data processor, the parties agree that in respect of all Customer Data, SWOOP is a data processor and the Customer is the data controller.

(g) The parties will enter into Data Protection Agreement(s) with each other as specified in the Order Form.

5. Fees and payment

(a) Customer acknowledges that License Fee in the Order Form has been determined based on an estimate of the number of Customer Users being analysed by SWOOP as specified in the Order Form as the Initial Customer Users. If the actual number of Users exceeds the Initial Licensed User count at any point during the Term a true-up process will adjust the License Fees in accordance with clause 5(b).

(b) Customer User True-Up. The Customer Users True-Up process and calculation is:

(i) User Count Reporting: At the end of each 12 month period during the Term, SWOOP will provide Customer with a User count report indicating the total number of unique users that have been included for analysis during the preceding four quarters.

(ii) Adjustment Frequency: Customer User True-Up adjustments to the License Fees will be calculated and billed on an annual basis, coinciding with the anniversary date of the Agreement.

(iii) Calculation of Additional Fees: The additional License Fees for Users exceeding the Initial Customer Users in the Order Form (such exceedance being the “Excess Users”) shall be calculated by multiplying the per-User License Fee specified in the Price List by the number of Excess Users identified in the user count report for each quarter (such increase a “Customer User True-Up”).

(iv) Multi-Year Terms: Where the Term exceeds 12 months, the number of Customer Users established through each Customer Users True-Up will be utilised in calculating the License Fee for the next 12 months during the Term, subject to Customer User True-Up at the end of that 12 month period.

(c) The per-user License Fees specified in the Price List are subject to annual CPI adjustment which take place on 1 January each calendar year.

(i) The CPI adjustment will apply from the start of any following 12-month term.

(ii) The CPI adjustment cannot exceed 3%.

(d) SWOOP will invoice Customer for the Licence Fees and any additional amounts due to SWOOP pursuant to this Agreement via an invoice which will be sent electronically to a recipient nominated by Customer. Customer must pay all invoices within 30 days of the date of that invoice.

(e) If the Customer requires the inclusion of a purchase order number on invoices, it must notify SWOOP of that purchase order number within 30 days of the Commencement Date. If a purchase order number is required and the Customer fails to notify within that time period SWOOP may suspend the Services until such purchase order number is notified to SWOOP.

(f) If SWOOP is instructed by Customer to submit invoices using an electronic procurement platform any direct costs or fees SWOOP incurs associated with the use of such a procurement platform must be reimbursed by Customer.

(g) If SWOOP is instructed by Customer to submit invoices to a third party used by the Customer to facilitate payment on behalf of Customer an administration fee of 1% of the invoiced amount applies. In addition, any direct costs or fees SWOOP incurs associated with submitting invoices to such third party must be reimbursed by Customer.

(h) Unless otherwise stated, the Licence Fees exclude all Taxes and all freight, insurance, delivery and other expenses which may be incurred. Customer agrees to pay all Taxes in connection with this Agreement.

(i) Customer agrees to make payments under this Agreement in full without set-off or counterclaim, and without any deduction or withholding in respect of Taxes imposed by any authority together with any related interest, penalties, fines and expenses in connection with them (unless prohibited by law, in which case Customer must pay an additional amount so that SWOOP receives the amount it would have received if no deductions or withholdings had been required) and in the currency in which the payment is due.

(j) Unless expressly provided for in this Agreement, all Licence Fees are non-refundable.

(k) If a Customer fails to pay Licence Fees, or other amounts due to SWOOP, by the due date SWOOP may:

(i) Charge interest calculated at the Late Payment Interest Rate on all amounts not paid by the due date.

(ii) Suspend all Services until all outstanding amounts are paid, if all outstanding amounts are not paid within 60 days of the due date;

(iii) Terminate this Agreement, if all outstanding amounts are not paid within 90 days of the due date.

6. Taxes and other costs

(a) For customers located outside Australia the following apply:

(i) The Licence Fees are exclusive of GST.

(ii) Customer must pay to SWOOP in addition to the Licence Fees, the amount payable by SWOOP as GST on each taxable supply made by SWOOP under this Agreement. Customer must pay that additional amount at the same time and in the same manner as the consideration for the taxable supply to which the additional amount relates.

(iii) SWOOP must give Customer a tax invoice for each taxable supply in a form which complies with the requirements of the GST Law.

(iv) In this clause, the expressions consideration, GST, input tax credit, recipient, supplier, supply, and tax invoice have the same meaning given by the GST Law. GST Law has the same meaning given to that term in the GST Act.

(v) Unless expressly stated otherwise, all amounts set out in this Agreement are exclusive of GST.

(b) For customers located outside Australia the following apply:

(i) Unless otherwise explicitly stated, the Licence Fees exclude all Taxes and all freight, insurance, delivery and other expenses which may be incurred in connection this Agreement including the supply of the Services or Licensing of the Software to the Customer.

(ii) Customer agrees to pay all Taxes and such other costs referred to in clause 6(b)(i).

(iii) Should any Taxes or such other costs referred to in clause 6(b)(i) become applicable, such amounts will be charged to and paid by the Customer in addition to the License Fees.

7. Intellectual property

(a) The parties agree that other than as expressly provided in this Agreement, nothing in this Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.

(b) If SWOOP provides any material to Customer (other than the Software or Documentation) that contains any of SWOOP’s Intellectual Property Rights (“SWOOP IP”), then SWOOP grants to Customer a non-transferable and non-exclusive licence to use the SWOOP IP solely for the purpose of receiving the Services in accordance with this Agreement.

(c) If Customer provides any material to SWOOP that contains any of Customer’s Intellectual Property Rights (including Customer Data and other materials in which Customer owns the Intellectual Property Rights or which are licensed to Customer), then Customer grant to SWOOP a non-transferable, non-exclusive, royalty-free licence to use those Intellectual Property Rights for the purpose of the performance of SWOOP’s obligations or the exercise of SWOOP’s rights under this Agreement.

(d) Customer grants SWOOP a royalty-free, revocable, non-exclusive, non-transferrable licence to use an approved Customer logo in SWOOP’s marketing material, subject to Customer’s pre-approval.

8. Confidentiality

(a) Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.

(b) A recipient of Confidential Information may only use the Confidential Information of the discloser for the purposes of performing the recipient’s obligations or exercising the recipient’s rights under this Agreement.

(i) not disclose the Confidential Information of the other to any person except:

(A) to its officers, employees, representatives and professional advisers from time to time as necessary to comply with its obligations or exercise its rights under this Agreement; and

(B) to any bona fide purchaser or investor or prospective purchaser or investor (and its representatives and advisors) of the whole or part of the assets or shares of the party who received the Confidential Information;

(ii) not assist or permit any person to make any unauthorised use of the discloser’s Confidential Information; and

(iii) take reasonable steps to safeguard the Confidential Information, including cooperating with the discloser as reasonably required to protect the confidentiality of its Confidential Information.

(d) Notwithstanding clauses 8(a) to 8(c) of these Terms and Conditions, either party may disclose Confidential Information of the other as required by law or in connection with legal proceedings relating to this Agreement.

(e) The restrictions set out in clause 8(a) to 8(c) of these Terms and Conditions will not apply to information or material which:

(i) is or becomes generally known to the public other than through a breach of this Agreement;

(ii) at the time it was first disclosed to a party, was already in that party’s lawful possession;

(iii) is developed independently by a party; or

(iv) is disclosed to a party by a third party entitled to disclose it.

(f) On expiry or termination of this Agreement or upon receipt of a written request, the parties undertake to deliver, or delete and certify the deletion of, all documents and other materials, including any copies of, in any medium in possession or control which contain or refer to Confidential Information of the other party. However, both parties may retain a copy (electronic or otherwise) of any document or other material containing or referring to the Confidential Information of the other party to the extent required to do so by law or necessary for the enforcement of obligations or exercise of rights pursuant to this Agreement.

(g) Customer acknowledges and agrees that SWOOP will transmit content of messages to Microsoft Cognitive Services via API calls to receive a sentiment score and to extract key phrases. Microsoft’s approach for managing this data is available at https://azure.microsoft.com/en-us/support/legal/cognitive-services-terms/ and https://www.microsoft.com/en-us/trustcenter/cloudservices/cognitiveservices.

9. Personal Information

Customer Data imported from the Data Sources may include Personal Information. The Software endeavours to pseudonymize any Personal Information and Customer Data accessible by the SWOOP Analytics Platform. However, it may be possible for Customer to re-identify Personal Information about Users by combining Customer Data accessed through the SWOOP Analytics Platform with other data of the Customer. Without limiting clause 4, Customer must comply with all Privacy Laws in respect of any Personal Information it re-identifies using Customer Data provided through the SWOOP Analytics Platform.

10. Aggregated data

(a) Customer acknowledges that SWOOP may introduce cross-organisational benchmarking capabilities into the SWOOP Analytics Platform.

(b) Customer agrees that computations of meta-data generated from Customer Data (such as average activity per user) which do not identify Customer or any of its Users (“Aggregated Data”) may be combined with similar data from other SWOOP customers (the combined data is “Benchmarking Data”) and that Benchmarking Data may be used by SWOOP and made available to other SWOOP customers.

(c) In consideration for the rights granted under clause 10(b), SWOOP will provide Customer with the ability to access and use Benchmarking Data when and in the manner it makes it available for other SWOOP customers who have granted rights similar to those granted under clause 10(b) in respect of their data.

(d) Customer may only use Benchmarking Data for the purpose of assessing their own Data Source usage against the Benchmarking Data, and not for any other purpose.

(e) Customer must not sell, sublicense, commercialise, share or otherwise transfer or distribute Benchmarking Data to any third party without SWOOP’s prior written consent.

(f) On termination or expiry of this Agreement, Customer’s right to access and use all Benchmarking Data immediately ceases and Customer must delete or destroy all Benchmarking Data in its possession or under its control, and if requested by SWOOP, certify such deletion or destruction.

11. Warranties and compliance with law

(a) SWOOP warrants to Customer that:

(i) the Software and Documentation and their use in accordance with this Agreement will not infringe any rights (including Intellectual Property Rights) of any third party;

(ii) each item of Software:

(A) complies with all applicable laws; and

(B) does not contain any code intended or designed to (A) permit access to or use of the Software by any person without the permission of Customer (or its authorised nominee), or (B) damage, delete, disable or otherwise disrupt normal use of the Software (including use of pre-programmed expiry dates).

(b) Customer warrants to SWOOP that any material provided by Customer to SWOOP under or in connection with this Agreement, and its use in accordance with this Agreement, will not infringe any rights (including Intellectual Property Rights) of any third party.

(i) it has full power and authority to enter into this Agreement;

(ii) it is able to grant the rights granted or purported to be granted under the Agreement is able fully to perform its obligations hereunder; and

(iii) it has all licences, permits and other regulatory consents required to perform its obligations under this Agreement (for the avoidance of doubt, Customer acknowledges and agrees that Customer must obtain and maintain a licence to use SharePoint Online and Viva Engage (Yammer) during the Term).

(d) Each party must comply with all applicable laws in the performance of its obligations and exercise of its rights under this Agreement.

12. Insurance

SWOOP shall take out and maintain the following insurance policies with a reputable insurance company:

(a) public liability insurance for an insured amount of at least AUD$10,000,000 per claim;

(b) professional indemnity insurance for an insured amount of at least AUD$5,000,000 per occurrence;

(d) workers’ compensation insurance as required by law.

13. Liability and Third Party Claims

13.1 Limitation of liability

(a) The maximum liability of each party under or in connection with this Agreement, whether for breach of this Agreement, in tort (including negligence) or for any other common law or statutory cause of action arising out of or in connection with this Agreement is limited to the amount of the Licence Fees paid and payable by Customer in the 12 months preceding the event to which the claim relates. The limitation in the foregoing sentence will not apply to liabilities arising from fraud or wilful breach of this Agreement by either party.

(b) A party’s liability under or in connection with this Agreement will be reduced to the extent the loss or damage is caused by the other party or any of the other party’s representatives.

(c) Nothing in this Agreement operates to limit or exclude liability that cannot be limited or excluded by law. For any liability which cannot be excluded, but can be limited, SWOOP’s liability is limited to, at SWOOP’s option, re-supplying or paying the cost of re-supplying the Services.

13.2 Third Party Claims

(a) Subject to clauses 13.2(b) and 13.3 of these Terms and Conditions, SWOOP will:

(i) defend Customer against all claims made against Customer by any third party alleging that Customer’s use of the Software or Documentation in accordance with the terms of this Agreement infringes the Intellectual Property Rights of that third party (“Third Party Claim”); and

(ii) pay the costs and damages awarded in respect of any Third Party Claim or the amount of any settlement SWOOP enters into in respect of that Third Party Claim.

(b) SWOOP’s obligations under clause 13.2(a) of these Terms and Conditions are subject to:

(i) Customer promptly notifying SWOOP of the Third Party Claim (an in any event no later than 3 Business Days after receiving the Third Party Claim);

(ii) SWOOP being given sole control of the defence and/or settlement of the Third Party Claim;

(iii) Customer not making any admissions relating to the Third Party Claim unless approved by SWOOP in writing; and

(iv) Customer providing, at SWOOP’s cost, all assistance reasonably requested by SWOOP for the defence and/or settlement of the Third Party Claim.

(c) If a Third Party Claim is made or, in SWOOP’s reasonable opinion, is likely to be made, SWOOP may, at SWOOP’s expense:

(i) procure the right for Customer to continue using the Software under the terms of this Agreement; or

(ii) replace or modify the Software to be non-infringing without material decrease in functionality.

(d) If:

(i) SWOOP notifies customer that neither of the options set out in clause 13.2(c) of these Terms and Conditions are available; or

(ii) if SWOOP replaces or modifies the Software in accordance with clause 13.2(c)(ii) of these Terms and Conditions and Customer notifies SWOOP within 10 Business Days of such replacement or modification that, acting reasonably, it considers that the replacement or change has caused a material decrease in functionality of the Software and SWOOP has not rectified that material decrease in functionality within 10 Business Days of the Customer’s notice,

Customer may terminate this Agreement on 30 days’ written notice to SWOOP and Customer will be entitled to a pro-rated refund of any prepaid Licence Fees for the period after the effective date of termination under this clause 13.2(d).

(e) This clause 13.2 sets out Customer’s sole and exclusive remedies and SWOOP’s entire liability in respect of any Third-Party Claims.

(f) Clause 13.1 does not apply to an amount payable by SWOOP under this clause 13.2.

13.3 Exception

SWOOP will not be liable for any loss or damage to the extent it is caused by, and will not be required to defend any Third-Party Claim to the extent it arises out of:

(a) a breach by the Customer of its obligations under this Agreement;

(b) the use of the Software or the Documentation otherwise than as permitted under this Agreement;

(c) unavailability of or limitations on the Data Sources or any Microsoft APIs (such as the amount of Customer Data that can be extracted);

(d) a change to the Software or Documentation not made by SWOOP;

(e) any act or omission of SWOOP or its Representatives to the extent it was done or omitted to be done in order to comply with any applicable law or terms of use of Microsoft APIs; or

(f) any data breach affecting information transmitted to Microsoft Cognitive Services where SWOOP has complied with the processes specified by Microsoft Cognitive Services as referenced above in clause 8(g).

13.4 Exclusion of indirect and consequential loss and other losses

Regardless of anything else in this Agreement, each party excludes all liability for any indirect and consequential loss or damage and any loss of profit (whether direct, indirect, anticipated or otherwise), loss of expected savings, opportunity costs, loss of business (including loss or reduction of goodwill), damage to reputation and loss or corruption of data regardless of whether any or all of these things are considered to be indirect or consequential losses or damage, in contract, tort (including negligence), under any statute or otherwise arising from or related in any way to this Agreement or its subject matter.

14. Termination

(a) In addition to SWOOP’s right to terminate pursuant to clause 5(h), either party may terminate this Agreement with immediate effect at any time by giving written notice to the other party (“Notified Party”) if:

(i) the Notified Party commits any material breach of any of this Agreement, and:

(A) in the case of a breach capable of remedy, fails to remedy the breach within 10 Business Days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or

(B) the breach is incapable of remedy; or

(ii) the Notified Party is Insolvent.

(b) Without limitation, material breach shall include any breach of clauses 1.2, 4, 7, or 8.

(c) Termination under this clause will be without prejudice to any other rights or remedies to which either party may be entitled at law.

(d) If Customer validly terminates this Agreement under clause 14(a) of these Terms and Conditions where SWOOP is the Notified Party, Customer will be entitled to a pro-rated refund of any prepaid Licence Fees for the period after the effective date of termination.

(e) Following termination or expiry of this Agreement:

(i) all rights to the Services granted under this Agreement terminate and Customer must cease using the Software and Documentation; and

(ii) Customer must pay all outstanding invoices and other amounts outstanding as at the date of, or arising as a result of termination.

(f) Clauses 1.2, 1.3, 4, 5, 7, 8, 9,10, 14, 18, 19, 20 and 21 will survive the termination or expiry of this Agreement for any reason.

15. Assignment

A party must not assign, transfer, novate, encumber or otherwise deal with all or part of its rights or obligations under this Agreement without the other party’s prior written consent, provided that the other party’s consent need not be obtained in relation to the assignment of this Agreement in connection with a merger, divestment, transfer, sale of assets, or change of control or ownership as long as the assignee agrees in writing to be bound by this Agreement.

16. Anti-Bribery

SWOOP warrants that:

(a) SWOOP will, and will take reasonable steps to procure that its Representatives will comply with all applicable anti-bribery and corruption laws and regulations;

(b) SWOOP:

(i) has not taken;

(ii) is not aware that any of its Representatives have taken;

(iii) will not take; and

(iv) will take reasonable steps to procure that its Representatives do not take,

any action in furtherance of an offer, payment, promise to pay, or authorisation of the payment or giving of anything of value (an “Advantage”) to any person (including, without limitation, any Customer Representative) in the knowledge that all or any part of the relevant Advantage will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage; and

(c) SWOOP will notify Customer as soon as reasonably practicable after becoming aware of any breach of the warranties set out in this clause 16.

17. Modern Slavery

(a) SWOOP must comply with the Modern Slavery Act.

(b) SWOOP must take reasonable steps to ensure that there is no Modern Slavery in their supply chains or in any part of their businesses.

(c) SWOOP will notify the Customer as soon as it becomes aware of any actual or suspected Modern Slavery in a supply chain that has a connection with this Agreement.

18. All Notices

Any notice or other communication that is required or permitted to be given under this Agreement will be given in writing and may be delivered by hand or sent by mail or email to:

(a) in the case of the Customer, the address specified at “Contact Person” in the Order Form; and

(b) in the case of SWOOP, to Cai Kjaer CEO, SWOOP Analytics Pty Ltd, 23 Loquat Valley Road, Bayview NSW 2104, Australia - Email: cai.kjaer@swoopanalytics.com.

or as otherwise notified in writing by the parties from time to time.

19. Disputes

(a) Each party must follow the procedures in this clause 15 before starting proceedings (except for urgent injunctive or declaratory relief).

(b) Either party may give written notice of a dispute to the other party (“Dispute Notice”). A party giving a Dispute Notice must provide details of the history and circumstances of the dispute and give reasons for why the party is disputing the issue.

(i) the dispute will be referred initially to the parties’ respective Contact Persons. The Contact Persons will attempt to settle the dispute within 5 Business Days of the referral;

(ii) if the parties’ Contact Persons are unable to resolve the dispute within those 5 Business Days, or other such period as is agreed, the dispute will be referred to the parties’ respective senior management at a level deemed appropriate by each party given the nature of the dispute; and

(iii) if the dispute remains unresolved after a further 5 Business Days, or other such period as is agreed, either party may pursue any remedy available to it at law to resolve the dispute.

20. General

(a) This Agreement, together with any Data Protection Agreement, forms the entire agreement between SWOOP and Customer in relation to its subject matter and replaces all previous agreements, arrangements, understandings, representations or other communications between the parties in relation to that subject matter.

(b) Any changes to this Agreement must be agreed in writing by SWOOP and Customer, other than changes to the Licence Fees and number of Customer Users made in accordance with this Agreement.

(c) This Agreement is governed by the laws of New South Wales, Australia. The parties agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

(d) No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this Agreement does not prevent a further exercise of that or of any other right or remedy.

(e) Any provision of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The remainder of this Agreement will remain in full force and effect.

(f) This Agreement may be executed in any number of counterparts, each of which, when executed, is an original. Those counterparts together make one instrument.

(g) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

(h) Each party agrees, at its own expense, to do anything the other party asks (such as obtaining consents, signing and producing documents and getting documents completed and signed):

(i) to bind the party and its successors under this Agreement;

(ii) to give effect to the intentions of the parties, the objectives of this Agreement and the transactions contemplated by it, including negotiating in good faith with respect to any matters requested by any of the parties to this Agreement, and by the execution and delivery of documents and other instruments; and

(iii) to use its reasonable endeavours to cause relevant third parties to do likewise to bind every party intended to be bound under this Agreement.

(i) The parties agree to pay their own legal and other costs and expenses in connection with the preparation and signing of this Agreement.

(j) In this Agreement the following rules of interpretation apply unless the contrary intention appears:

(i) headings are for convenience only and do not affect the interpretation of this Agreement;

(ii) the singular includes the plural and vice versa;

(iii) words that are gender neutral or gender specific include each gender;

(iv) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(v) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not words of limitation; and

(vi) a reference to:

(A) a person includes a natural person, partnership, joint venture, government agency, local authority, association, corporation, trust or other body corporate;

(B) a thing (including but not limited to a chose in action or other right) includes a part of that thing;

(D) a document includes all amendments or supplements to that document or otherwise as novated from time to time;

(E) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;

(F) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated, re-enacted or replaced;

(G) a statute includes any regulation, ordinance, by-law or other subordinate legislation made under it;

(H) a monetary amount is in United States dollars and all amounts payable under or in connection with this Agreement are payable in United States dollars unless specifically stated otherwise in the Order Form; and

(I) (when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day.

21. Definitions and Interpretation

Administrator means a User who is authorised by Customer as an administrator of the Data Sources.

Agreement comprises the Order Form and these Terms and Conditions.

Aggregated Data has the meaning provided in clause 10(b).

Benchmarking Data has the meaning provided in clause 10(b).

Business Day means a day other than a Saturday, Sunday or public holiday in Sydney when banks in Sydney are open for business.

Business Hour means 8.30 am to 5 pm, Sydney time, on a Business Day.

CPI means annual the Consumer Price Index (All Groups) for Australia as sourced from https://www.abs.gov.au/statistics/economy/price-indexes-and-inflation/consumer-price-index-australia, or wherever the Australian Bureau of Statistics subsequently publishes Consumer Price Index data for Australia, or in the absence of data from the Australian Bureau of Statistics, an equally reputable and agreed-upon alternative source and in the event of the Consumer Price Index being discontinued or abolished such price index as the Australian Statistician substitutes for it..

Commencement Date means the date specified in the Order Form.

Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential, and includes including any information relating to the financial affairs, assets or liability of a party, or any information relating to the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or services.

Contact Person of a party means the person listed in the Order Form, as updated by that party from time to time by written notice to the other party.

Corporations Act means the Corporations Act 2001 (Cth).

Customer Data means all data stored, processed or created by or on behalf of Customer (including any customer data) as part of the Services and includes Personal Information, but does not include the Software, the Documentation, SWOOP IP, or any other Intellectual Property Rights of SWOOP or its licensors.

Customer Users means the maximum number of Users permitted to access the Software, which, as at the Commencement Date is set out in the Order Form and is subject to adjustment pursuant to clause 5.

Customer Users True-Up has the meaning provided in clause 5(b).

Data Sources means the Customer-controlled applications that SWOOP is extracting data from which have been selected in the Order Form.

Data Protection Agreement means an agreement between the parties in relation to data transfer and / or processing containing Standard Contractual Clauses where the Order Form specifies that a data transfer agreement is required.

Dispute Notice has the meaning given in clause 19.

Documentation means all documentation reasonably necessary to effectively use, modify and adapt the Software, including the documentation specified in Order Form and any amendments or updates to such documentation.

EU GDPR means General Data Protection Regulation 2016/679 (EU) of the European Parliament and the Council.

Excess Users has the meaning provided in clause 5(b)(iii).

Initial Term has the meaning given in the Order Form.

A person is Insolvent if:

(a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);

(b) it has had a Controller (as defined in the Corporations Act) appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property;

(c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party to this agreement);

(d) an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;

(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;

(f) it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this agreement reasonably deduces it is so subject);

(g) it is otherwise unable to pay its debts when they fall due; or

(h) something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction.

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Late Payment Interest Rate means the then applicable cash rate set by the Reserve Bank of Australia plus five percentage points.

Licence Fees means the fees payable by Customer for the Services set out the Order Form, as varied in accordance with the terms of this Agreement.

Customer Users means the maximum number of Users permitted to access the Software, which, as at the Commencement Date is set out in the Order Form and is subject to adjustment pursuant to clause 5.

Customer Users True-Up has the meaning provided in clause 5(b).

Microsoft APIs means the APIs that Microsoft makes available to extract data from its software.

Microsoft Cognitive Services APIs means the APIs sending data from SWOOP to Microsoft Cognitive Services to enable SWOOP to provide the Services to the Customer.

Modern Slavery Act means the Modern Slavery Act 2018 (Cth)

Modern Slavery has the meaning given in section 4 of the Modern Slavery Act 2018 (Cth).

Order Form means the section of this Agreement titled “Order Form”.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Price List means the price list for the Services (available on request), as amended by SWOOP from time to time.

Privacy Laws means the Privacy Act 1988 (Cth) and all other applicable privacy laws or data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information.

Renewal Term has the meaning provided in the Order Form.

Representatives means, in relation to each party, any person acting for or on behalf of that party and includes any director, officer, employee, agent, contractor, sub-contractor, legal advisor or professional advisor.

Services means SWOOP’s provision of the services set out in the Order Form, including provision of the Software and Software Support Services.

SharePoint Online means the Customer’s SharePoint Online which is supplied to the Customer by Microsoft.

Software means the SWOOP Social Network Analytics Platform and the SWOOP SharePoint Online Data Mining Application, and includes any subsequent releases, updates or patches of that software provided to Customer under this Agreement.

Software Support Services means the maintenance and support services set out in clause 3.

Standard Contractual Clauses means:

(a) in respect of Personal Information to which the EU GDPR applies, the standard contractual clauses for the transfer of personal data to third countries adopted by the European Commission under Commission Implementing Decision (EU) 2021/914; and

(b) in respect of Personal Information to which the UK GDPR applies, the standard data protection clauses that are adopted from time to time by the UK Information Commissioner’s Office in accordance with Article 46(2) of the UK GDPR including the international data transfer agreement and the international data transfer addendum to the European Commission’s standard contractual clauses for international data transfers,

as amended from time to time.

Subscription Period means the period of time from the earlier of the Commencement Date and the date the Software has been installed by the Customer until the end of the Initial Term and in the case of Renewal Terms the period from the commencement of the Renewal Term until the end of that Renewal Term.

SWOOP IP has the meaning given in clause 7(b).

SWOOP Analytics Platform means the software described with that name in the Order Form.

SWOOP Data Mining Application means the software described with that name in the Order Form.

Taxes means all statutory, government or regulatory charges, taxes (including value added taxes or goods and services taxes), levies, fees, imposts, charges and duties (including stamp and transaction duties) and other costs imposed by any authority together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, SWOOP’s net income.

Term means the Initial Term plus all Renewal Terms.

Terms and Conditions means the section of this Agreement titled “Terms and Conditions”.

Third-Party Claim has the meaning given in clause 13.2.

UK GDPR means the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (as amended)

User means any employee, agent or contractor of the Customer authorised to access SharePoint Online.

User Interaction Data means data about User interactions such as for example messages posted or pages visited by a User.

Viva Engage (Yammer) means the Customer’s Viva Engage (Yammer) home network which is supplied to the Customer by Microsoft.

Terms and Conditions

Subscribe to our monthly newsletter

Products

Support

Company

Resources