SuperIT SaaS Services Agreement

Intellectual Property means copyrights, patents, trade marks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how).

In this Agreement, unless the context otherwise requires: a reference to legislation includes any modification, re-enactment or substitution of it; the singular includes the plural and vice versa; a reference to a person includes a corporation, partnership, joint venture, association, authority, trust, state or government; a recital, schedule or annexure forms part of this Agreement; a reference to a party includes that party's successors and permitted assigns; a reference to time is to local time in South Australia; and a reference to "dollars" or "$" is to Australian currency.

Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by the Company, the Customer must not:

• modify the Software or merge any aspect of the Software with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivative works from, frame, download, display, transmit or distribute any of the Software, its source code or any documents, manuals or setup instructions provided with the Software or in relation to the Services;
• licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;
• engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
• access, store, distribute or transmit: viruses, worms, trojans or other malicious code that corrupts, degrades or disrupts the operation of the Software; material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party; material that facilitates illegal activity; or material that abuses or causes damage or injury to any person or property;
• provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party (and the Customer must take all reasonable steps to prevent unauthorised access to, or use of, the Software);
• share any features of the Software that are not publicly available with any unauthorised third party;
• engage in any conduct on the Software that is in breach of this Agreement; or
• encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.

Any breach of this clause constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to and/or use of the Software or the Services, and/or take further actions against you for breach of this Agreement.

With respect to any Services distributed or provided to the Customer for use on the Customer's premises or devices, the Company grants the Customer a non-exclusive, non-transferable, non-sublicensable license to use such Services during the Term only in connection with the Services.

The Customer represents, covenants and warrants that it will use the Services only in compliance with the Company's standard published policies then in effect (Policy) and all applicable laws and regulations.

The Customer agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Customer's use of Services. Although the Company has no obligation to monitor the Customer's use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

The Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, Equipment). The Customer is also responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without the Customer's knowledge or consent.

Each party (Receiving Party) understands that the other party (Disclosing Party) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (Proprietary Information). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Customer includes non-public data provided by the Customer to the Company to enable the provision of the Services (Customer Data).

The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Proprietary Information. These obligations do not apply to information after five (5) years following disclosure, or information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

The Customer owns all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services. The Company owns and retains all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all Intellectual Property related to any of the foregoing.

Notwithstanding anything to the contrary, the Company has the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free (during and after the term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

Both parties agree to promptly destroy any Proprietary Information of the other party that is within their possession when this Agreement is terminated. No rights or licenses are granted except as expressly set out in this Agreement.

The Company grants the Customer a personal, non-exclusive, non-transferable and revocable license to permit its authorised users to access and use the Software and the Services (including the Intellectual Property contained therein) throughout the world during the Term.

All rights, title or interest in and to the Software and any information or technology that may be provided to, or accessed by, you in connection with your use of the Software or Services is owned, and will remain owned, by the Company or its licensors (Provider IP). Using the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP.

All Intellectual Property discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, the Company, including any enhancements, improvements and modifications to the Provider IP (collectively, Developed IP).

To the extent that, in the course of providing the Services, the Company creates customer-specific prompts, documentation, or other written content that is substantially derived from Customer Data and created specifically for the Customer's internal business operations (Customer Derived Materials), the Company grants the Customer a perpetual, non-exclusive, worldwide, royalty-free licence to use, reproduce, modify and adapt those Customer Derived Materials solely for the Customer's internal business purposes. For the avoidance of doubt:

• the Company retains all rights, title and interest in and to the Software, Services, Provider IP, Developed IP, systems, models, tools, templates, methodologies, know-how, processes and generalized learnings;
• the Customer does not acquire any ownership rights in any Software, Services, Provider IP, Developed IP, platform-wide improvements, artificial intelligence models, functionality, product features, tools, templates, methodologies, or other technology developed or used by the Company;
• the licence granted under this clause does not permit the Customer to commercialise, resell, sublicense, distribute, or make the Customer Derived Materials available to any third party, except to the extent reasonably necessary for the Customer's internal business purposes; and
• the Company may use anonymised, aggregated, generalized, or non-customer-identifiable learnings, insights, concepts, techniques and know-how derived from providing the Services to improve, develop, market and provide its products and services, provided that such use does not disclose Customer Data or the Customer's Confidential Information.

The Customer must not represent to anyone or in any manner whatsoever that they are the proprietor of the Software and/or the Provider IP. The Customer agrees that the Company may refer to the Customer, their business name, publish their logo and/or trademark and make reference to the Customer as a customer of the Company in any communications or publications for the purposes of marketing or promoting the Company's business.

The Customer agrees to maintain the confidentiality of any proprietary information disclosed by the Company in connection with the Services, including but not limited to the Software's source code, algorithms and technical specifications. The Customer shall use such information solely for the purpose of using the Services as permitted under this Agreement and shall not disclose such information to any third party without the Company's prior written consent. This obligation of confidentiality survives the termination of this Agreement for a period of five (5) years.

The Customer acknowledges and agrees that any feedback, suggestions, ideas or other information provided by the Customer regarding the Software or Services (Feedback) will be owned by the Company. The Customer hereby assigns all rights, title and interest in and to such Feedback to the Company, and agrees to assist the Company, at the Company's expense, in perfecting and enforcing such rights.

The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and proper manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company's reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, the Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.

While all due care has been taken, the Company does not warrant that the operation of the Services will be uninterrupted or error free, or that any third party components of the Services will be accurate or error free, or that the Services will be compatible with any application, program or software not specifically identified as compatible by the Company.

To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Software provided hereunder is given or assumed by the Company other than as required at law. The Company makes no representations, warranties or guarantees that content available on, or produced by or via, the Software is accurate, complete, reliable, current, error-free or suitable for any particular purpose, or that the Software and/or the Services are or will be free from viruses, worms, trojans or other malicious code. The Customer is responsible for taking precautions in this respect.

The Company's obligation and the Customer's exclusive remedy during the Term are limited, in the Company's absolute discretion, to: (i) the Company, at its own expense, using all reasonable endeavours to rectify any non-conformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time; or (ii) a refund of the Fees paid if, in the Company's reasonable opinion, it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement will terminate.

The Customer acknowledges and accepts that it is the Customer's sole responsibility to ensure that: the facilities and functions of the Services meet the Customer's requirements; the Services are appropriate for the specific circumstances of the Customer and are within the laws and regulations of the Customer's jurisdiction; and that the Company does not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.

The Company will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to: any modification to the Services other than by the Company; accident, abuse or misapplication of Services by the Customer; use of the Services with other software or equipment without the Company's written consent; use of other than the latest, unaltered current release of the Services; or use other than in accordance with this Agreement. If, upon investigation, a problem with the Services is determined not to be the Company's responsibility, the Company may invoice the Customer immediately for all reasonable costs and expenses incurred by the Company in the course of or in consequence of such investigation.

The Customer acknowledges and agrees that the Company's sole liability, and the Customer's exclusive remedy, for any breach of warranty shall be limited to the Company's reasonable efforts to correct the non-conforming Services as described above. In no event shall the Company be liable for any loss of data, loss of profits, or any other special, incidental, consequential or indirect damages arising from the Customer's use of the Services, even if the Company has been advised of the possibility of such damages.

The Customer will at all times indemnify and hold harmless the Company and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from:

• a breach by the Customer of its obligations under this Agreement; or
• any wilful, unlawful or negligent act or omission of the Customer.

Except in the case of death or personal injury caused by the Company's negligence, the liability of the Company under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the fees paid by the Customer to the Company for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Company has been advised of the possibility of such damages.

Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

The Company will provide onboarding services to enable the Customer to integrate the software into their IT environment and assist with the deployment of the software to their end-users. Where applicable, the Customer will have access to SuperIT during a Pilot phase at the terms specified in the Order Form.

The Company will provide Technical Support to the Customer via multiple channels. Human-based support will be available between 9:00 am – 5:00 pm Australian Eastern Standard Time, excluding Australian Public Holidays (Support Hours). The Customer may initiate a support request as defined by the documentation provided to the Customer. The Company will use commercially reasonable efforts to respond to all support requests within one to three business days.