Software as a Service Agreement

THIS AGREEMENT is made between:

AMCKL Pty Ltd & TJENM Pty Ltd trading as Attekus (Supplier); and

The entity described in the Key Terms (Customer)

BACKGROUND

The Supplier is the owner of a software system to which the customer seeks access.
The Supplier wishes to grant, and the Customer wishes to access the software system on the terms of this agreement.
The Supplier agrees to maintain the software, and the customer agrees to pay for the service.

OPERATIVE PROVISIONS

Definitions and interpretation
1. Definitions
  1. Additional Services means the services, to be provided by the Supplier to the Customers as more specifically described in Key Terms.
  2. Access Commencement Date means the date that the Customer receives access to the Software.
  3. Confidential Information means information that is by its nature confidential but does not include:
    1. information already known to the receiving party at the time of disclosure by the other party; or
    2. information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;
  4. Content means a creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, and interactive features, any of which may be generated, provided, or otherwise made accessible on or through the Software.
  5. Current Term means, with respect to the Term, the period commencing on the most recent calendar year anniversary of the Access Commencement Date, and expiring on the next calendar year anniversary of the Access Commencement Date.
  6. Customer means the entity described in Key Terms.
  7. Customer Data means data owned or supplied by the Customer, or which may otherwise be generated, compiled, arranged or developed on the System at the request of the Customer pursuant to this Agreement.
  8. End User means an individual employee or affiliate of the Customer that is a user of the System, or interacts with the System on the Customer’s behalf.
  9. GST means:
    1. the same as in the GST Law;
    2. any other goods and services
    3. tax, or any tax applying to this agreement in a similar way; and
    4. any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
  10. GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  11. Included Features means the services specified in Key Terms.
  12. Initial Term means the period specified in Key Terms.
  13. Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
  14. Key Terms means the document marked “Key Terms” as provided to and agreed between the Supplier and the Customer.
  15. Moral Right means:
    1. a right of attribution of authorship;
    2. a right not to have authorship falsely attributed;
    3. a right of integrity of authorship; or
    4. a right of a similar nature;
      which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement;
  16. New Release means software which has been provided primarily to implement an extension, alteration, improvement or additional functionality to the Software;
  17. Personal Information means information or an opinion about an individual as defined in s 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by the Supplier for the purposes of this Agreement.
  18. Privacy Policy means the Supplier’s Privacy Policy, if any, and as amended from time to time and available at https://www.attekus.com.au/privacypolicy/.
  19. Purpose means taking, managing and facilitating bookings and event registrations.
  20. Subscription Fee means the amount so specified in Key Terms.
  21. Service Levels has the meaning given by APPENDIX 1.
  22. Software means the platform known as “Bookable” including the Included Features, which is to be made available by the Supplier to the Customer pursuant to this agreement;
  23. Special Terms the terms of this Agreement specified in Key Terms.
  24. Supplier means AMCKL Pty Ltd & TJENM Pty Ltd trading as Attekus.
  25. System means the information technology systems of the Supplier which contain or provide access to the Software.
  26. Term means the term of this Agreement, which will commence on the Access Commencement Date for the Initial Term, and continue thereafter for successive periods of one calendar year until terminated by either party in accordance with this Agreement.
  27. Terms of Use and Service means the terms of use and service available at https://www.attekus.com.au/ and as amended from time to time.
  28. Update means software which has been produced primarily to overcome defects in the licensed Software but may also include enhancements

1. Interpretation
  Words importing the singular include the plural and vice versa and words importing one gender shall include all other genders. Headings are for ease of reference only and shall not affect the interpretation of this agreement.

Access
1. Commencing on the Access Commencement Date, the Supplier grants to the Customer the right to access the System for the duration of this Agreement for the Purpose, and on the terms set out in this Agreement.
2. The Supplier will provide the Customer with access to the Software on a real-time basis. Access will be provided by way of application programming interface and web interface.
3. Subject to the terms of this Agreement, access to the Software and the System will continue for the Term.
Conditions
1. The Supplier warrants that it has the authority to grant access to the System.
2. The access granted is non-transferable, world wide and non-exclusive to the Customer.
3. The Supplier will provide reasonable notice to the customer in advance of any New Releases. No notice will be provided for provision of Updates.
Service Levels
1. The Supplier will guarantee the performance of the Software in accordance with Service Levels, and provide such reasonable support, documentation and/or training to the Customer to facilitate use of the Software.
Fees
1. The Customer must pay to the Supplier the Subscription Fee as described on the Supplier’s invoice.
2. The Fees are exclusive of all taxes, duties and surcharges payable in respect of the Software and in respect of this agreement.
3. If payment is not made within
  1. 15 calendar days of the due date, access to the Software will be restricted pending receipt of payment;
  2. 1 calendar month of the due date, access to the Software will be suspended pending receipt of payment;
  3. 3 calendar months of the due date, this will be deemed to be a Terminating Event.
4. If payment is not made within 1 calendar month of the due date, interest will be payable by the Customer at the rate of 6 per cent per annum on the overdue amount, calculated daily
5. If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by the Supplier pursuant to this agreement, the Customer will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement. If it is subsequently resolved that a further amount is payable, the Customer will pay that amount together with interest at the rate of 6 per cent per annum, calculated daily
Ownership and Intellectual Property Rights
1. The Supplier retains ownership of the Software whether in its original form or as modified by the Customer during the term of this Agreement.
2. All Intellectual Property Rights in the Software are retained by the Supplier.
3. Nothing in this agreement affects the ownership of Moral Rights in the Software.
4. The Customer agrees to be solely responsible for Content and Personal Information uploaded or submitted to the Software, and the consequences of submitting and publishing its Content and Personal Information on the Software. The Customer affirms, represents, and warrants that it has the necessary licenses, rights, consents, and permissions to provide Content and Personal Information that it submits.
5. The Customer grants to Supplier a non-exclusive, transferable, sub-licensable, royalty-free, perpetual license for the use of any Content and Customer Data uploaded or submitted to the Software to comply with its obligations under this agreement and for the Purpose, revocable:
  1. in writing; or
  2. in accordance with the Customer’s instructions supplied communicated through the Software.
6. The Customer warrants that Content it submits to the Software will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless the Customer is otherwise legally entitled to post the material.
7. The Customer grants to the Supplier an unlimited non-exclusive licence to use any trade marks, logos or other branding images owned or controlled by the company for marketing and promotional purposes revocable in writing.
8. Supplier retains ownership of the Software during the term of this agreement.
9. Supplier will ensure the Customer Data is identifiable as the property of the Customer, and will remain free of any lien, charge or other encumbrance of a third party.
10. Supplier warrants that the Customer’s use of or access to the Software does not infringe the intellectual property rights of any third party.
Reverse engineering
1. Except as expressly permitted by sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), the Customer must not reverse assemble or reverse compile the Software or any part of the Software.
Data Security
1. The Customer will take all reasonable steps to protect the System from unauthorised access, use or damage.
2. The Supplier will take all reasonable steps to protect Customer Data and Personal Information in its possession against misuse or loss, and will ensure that Customer Data and Personal Information is secure at all time.
Interactions and Third Party Costs
1. The Customer bears all risk of failure of, or issues with services provided by external or third party service providers, and is solely responsible for any and all associated costs and expenses.
Indemnity and liability
1. The Supplier will indemnify and hold harmless the Customer against any claim made against the Customer by a third party alleging that the Software infringes the copyright of that third party.
2. The Supplier shall not be liable to the Customer under clause 10.1 if:
  1. the Customer does not notify the Supplier of the other person’s claim or of infringement of copyright within seven days after becoming aware of the claim;
  2. the Supplier’s ability to defend the claim has been prejudiced by the Customer’s non-compliance with any of its obligations under this agreement;
  3. the Customer does not give the Supplier reasonable assistance in defending the claim;
  4. the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by the Supplier; or
  5. the Customer does not permit the Supplier to have control of the defence of the claim and all related settlement negotiations.
3. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, the liability of the Supplier in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of the Supplier in connection with its obligations under this agreement will not exceed the sum of any Subscription Fee paid for the immediately preceding calendar year, even if the Supplier has been advised by the Customer as to the possibility of such losses being incurred.
4. The Customer will indemnify and hold harmless the Supplier against any claim made against the Supplier arising out of a breach of clause 6.4.
Disclaimers
1. The Software is intended for and will be made available for information purposes only and should not be relied upon to protect or maintain the safety or health of any individual or property.
2. The Supplier makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Software or the information, services, or related graphics contained on the Software for any purpose.
3. The Software may contain content, imagery, text and other media generated by users of the Software. The Supplier makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Software or the information, products, services, or related graphics contained on the Software for any purpose.
4. The Supplier does not warrant and will not be liable for the Software becoming temporarily unavailable in the instance of technical issues or any associated issues beyond its control.
Termination
1. For the purpose of this agreement, each of the following is a Terminating Event:
  1. the breach or threatened breach by either party of any of its material obligations under this agreement;
  2. the appointment of any type of insolvency administrator in respect of the property or affairs of either party;
  3. the use of the Software by the Customer for any reason other than the Purpose;
  4. using the Software or the System in a way that is unreasonable or onerous on the Supplier;
  5. the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;
  6. the permanent discontinuance of use of the Software or any part of the Software by the Customer;
  7. any event described in this agreement as a Terminating Event.
2. This agreement may be terminated immediately on the happening of a Terminating Event at the option of the affected party.
3. This agreement may be terminated with either party providing 30 calendar days’ notice prior to the conclusion of the Term.
4. Any termination of this Agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.
Implied terms and consumer guarantees
1. Subject to clause 13.2, any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
2. Pursuant to ss 64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the Customer establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited:in the case of goods, to any one of the following as determined by the Supplier:

1. the replacement of the goods or the supply of equivalent goods;
2. the repair of the goods;
3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. the payment of the cost of having the goods repaired; andin the case of services, to any one of the following as determined by the Supplier:

1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again from a suitably qualified provider.

Transition out
1. Upon termination of this agreement, the Supplier will provide reasonable assistance to enable the transfer of data, documentation and records to the Customer or a third party nominated by the Customer, at our current daily rate.
2. Data from the System will be supplied in a ‘bacpac’ format and is the responsibility of the customer to import into a 3rd party system. No guarantees are made that the provided data will be suitable for any other 3rd party system.
3. Supplier will not be liable for the import of data, configuration, training, data manipulation, providing of database schemas to assist with the transition to a 3rd party system.
Confidentiality
1. A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
2. A party will not be in breach of subclause (a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
3. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
4. Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
5. This clause will survive the termination of this agreement.
Customer’s general obligations
1. The Customer will
  1. only use the System for the Purpose;
  2. not use the System for any activity which is obscene, indecent, offensive or defamatory;
  3. refrain from tampering with, hindering the operation of or making unauthorised modifications to the System;
  4. refrain from introducing any virus to or from the System;
  5. refrain from using any part of the System in contradiction of the Spam Act 2003 (Cth);
  6. keep all passwords, account names, tokens or log in identifications required to access the System secure and confidential; and
  7. refrain from uploading onto the System any material, or use the System in any way:
    1. which infringes the Intellectual Property Rights of any person; or
    2. which is unlawful or violates any law.
  8. The Customer agrees to comply with all policies notified in writing by the Supplier to the Customer from time to time.
  9. The Customer will do any and all reasonable things to ensure that any and all third parties granted access to the System arising out of this Agreement:
    1. only use the System for the Purpose;
    2. not use the System for any activity which is obscene, indecent, offensive or defamatory;
    3. refrain from tampering with, hindering the operation of or making unauthorised modifications to the System;
    4. refrain from introducing any virus to or from the System;
    5. refrain from changing any administration settings on any part of the System that are intended for the sole use of the Supplier and its employees;
    6. refrain from using any part of the System to send commercial electronic messages in contradiction of the Spam Act 2003 (Cth);
    7. keep all passwords, account names, tokens or log in identifications required to access the System secure and confidential; and
    8. refrain from uploading onto the System any material, or use the System in any way:
      1. which infringes the Intellectual Property Rights of any person; or
      2. which is unlawful or violates any law.

GST
1. Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
2. In addition to paying the Subscription Fee and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:
  1. pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect of which the Subscription Fee or any other amount is payable under this agreement; and
  2. make such payment either on the date when the Subscription Fee is due or within 7 days after the Customer is issued with a tax invoice, whichever is the later.
3. The Supplier must, within 28 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this agreement.
4. The Supplier will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but the Supplier need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless the Supplier has received a refund or credit for that amount.
Enforcement
1. All use of the System is subject to the Terms of Use and Service, and the Customer may not impose any other terms pertaining to their use of the System.
2. The Customer agrees to immediately notify the Supplier of any known or suspected breach of the Terms of Use and Service or other unauthorised use of the System and to assist the Supplier in the enforcement of the terms of the Terms of Use and Service.
General
1. Entire agreement
  This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.
2. Notices
  All notices which are required to be given under this agreement must be in writing and must be sent to the address of the recipient set out in the Key Terms or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.
3. Assignment
  The Customer may not assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of the other party. The Supplier may assign, whether in whole or part, the benefit of this agreement or any rights hereunder, without the prior written consent of the other party.
4. Governing law
  This agreement shall be governed by and construed in accordance with the laws for the time being in force in New South Wales, Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that New South Wales, Australia.
5. Waiver
  No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
6. Variation
  No variation of this agreement will be effective unless in writing and signed by both parties.
7. Agency, partnership etc
  This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
8. Severability
  1. Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.
9. Dispute resolution
  1. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any questions regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Expedited Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English.
  2. All disputes must be provided to the other party in writing and allow 30 days for the other party to remedy the situation before arbitration is commenced.

Appendix 1 – Service Level Guarantee

Definitions and interpretation
1. Definitions
  1. Downtime means the Software is unavailable for a customer, exclusive of Permitted Downtime or Third Party Downtime.
  2. Monthly Uptime Percentage means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
  3. Permitted Downtime means the Software is unavailable for customer use during a period which has been announced to the Customer. Unless otherwise communicated, scheduled downtime shall not be more than 2 hours per week, for major system configuration changes, upgrades or normal maintenance.
  4. Third Party Downtime means any disruption to services, or any part of the services provided under this agreement arising out of the action or inaction of any third party.
2. Monthly Uptime Guarantee
  1. Monthly Uptime Guarantee is 99.95% availability.
3. Support and Maintenance
  1. Support is provided for all customers with a current Annual Subscription. Support and Maintenance covers:
    1. Security patches
    2. Critical bug fixes
    3. New features & enhancements
    4. Access to Attekus’ Support team for technical troubleshooting.
  2. Access to Support
    1. Online Support Tool – Service Desk. Customers will be assigned login credentials to lodge and review service requests. These will be attended to during support hours;
    2. Email – all emails are to be sent to support@attekus.com.au and will be attended to during support hours;
    3. Phone – calls to the Bookable support team will be attended to during support hours.
    4. Support hours are 8am to 6pm AEST on working days and will not be available during NSW Public and Statutory Holidays.
  3. Support and Maintenance Service Level Agreement:
    1. Attekus aims to meet the following Service Levels* for support of Bookable customers:
      1. Priority 4 – response within 5 working days.
      2. Priority 3 – response within 3 working days.
      3. Priority 2 – same day as submission if submitted prior to 10am. Otherwise within 24 hours.
      4. Priority 1 – within 4 working hours.
    2. All Service Levels rely on sufficient information being supplied to the support team to be able to read, understand and triage the request before making contact.
    3. All requests relating to system configuration, including advice on configuration, will be forwarded to our Professional Services team and may be billable.
    4. For all issues relating to access to Bookable please contact your system and/or network provider to eliminate internal issues causing access issues before lodging a service request with Attekus.
    5. Priority Status Definitions:

Priority Level	Definition
Priority Level 1	Production application down or major malfunction affecting business and high number of staff
Priority Level 2	Serious degradation of application performance or functionality effecting a smaller number of staff
Priority Level 3	Application issue that has a low/moderate impact to the business
Priority Level 4	Issue or question with limited business impact

Exclusions.
1. This Service Level Guarantee does not apply to any services that expressly exclude this Service Level Guarantee (as stated in the documentation for such services) or any performance issues that:
  1. are related to acts of nature, forces or causes beyond our reasonable control, strikes, labour disputes, riots, insurrections, civil disturbances, explosions, acts of god, war, governmental actions, or orders of domestic or foreign courts or tribunals;
  2. result from availability of third-party APIs or services;
  3. result from a Customer’s equipment.