Terms

These Terms of Service (these “Terms”), together with the applicable Order Form(s) and Statement(s) of Work, each as defined below, referencing these Terms (collectively, the “Agreement”) are made and entered into by and between eCommify Apps Pty Ltd with a Registered Office at 78 Herald Street, Cheltenham VIC 3192 AU (“eCommify Apps”) and the customer identified in the applicable Order Form or Statement of Work (“Customer”) as of the effective date of the first Order Form or Statement of Work (the “Effective Date”). By executing an order form or statement of work that references this Agreement (as applicable, an “Order Form” or “Statement of Work”), or indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by eCommify Apps, Customer agrees to be bound by the Agreement. Any individual accepting the Agreement on behalf of Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to the Agreement. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE ECOMMIFY APPS SERVICES (as defined below).

The parties agree as follows:

1. eCommify Apps Services

1.1. This Agreement governs (a) Customer’s access to and use of eCommify App’s proprietary, web-based software solution(s) as described in the applicable Order Form (the “eCommify Apps Services”); and (b) eCommify App’s performance and Customer’s receipt of managed services or other professional services as described in the applicable Statement of Work (the “Professional Services”). eCommify Apps grants to Customer and its authorized employees and agents (“End Users”) a limited, non-transferable, non-exclusive right during the term set forth on the applicable Order Form (the “Order Term”) to access and use the eCommify Apps Services for Customer’s business purposes.

1.2. In the event that Customer elects to have eCommify Apps perform any consulting, training or other professional services (“Professional Services”), the parties will enter into a Statement of Work governing the provision of such Professional Services. Each Statement of Work will be subject to the terms and conditions of this Agreement. Each Statement of Work will, at a minimum, include: (a) a description of the specific Professional Services to be provided; (b) the schedule for the performance of the Professional Services; and (c) the fees payable for such Professional Services. To the extent eCommify Apps creates or develops any deliverables arising from or related to the Professional Services, upon Customer’s payment for the applicable Professional Services, and to the extent Customer is not in breach of this Agreement, eCommify Apps grants to Customer a limited, non-transferable, non-exclusive right, during the applicable Order Term, to access and use such deliverables solely for Customer’s business purposes, subject to the use restrictions set forth in this Agreement and/or the applicable Order Form. Customer acknowledges that the deliverables are eCommify App’s Confidential Information (as defined below).

1.3. Passwords

Customer is responsible for protecting and safeguarding any passwords, API keys, user IDs or other credentials and login information (collectively, “Passwords“) that have been provided to Customer or that are generated in connection with Customer’s use of the eCommify App Services. Customer will not disclose or make available Passwords to any third-party other than to authorized end users and will use best efforts to prevent unauthorized access to, or use of, the Passwords or the eCommify Apps Services. Customer is fully responsible for all activities that occur in connection with the Passwords. Customer will immediately notify eCommify Apps in writing of any unauthorized use of the eCommify Apps Services that comes to Customer’s attention.

2. Restrictions

2.1. Acceptable Use

Except as expressly authorized by this Agreement, Customer will not: (a) modify, disclose, alter, translate or create derivative works of the eCommify Apps Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the eCommify Apps Services (or any components thereof); (c) derive, or attempt to derive, the source code of, or disassemble, decompile, reverse compile, or reverse engineer the eCommify Apps Services or any portion thereof (except to the extent and for the express purposes authorized by any and all applicable country or state laws (collectively, “Laws”)); (d) use the eCommify Apps Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the eCommify Apps Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the eCommify Apps Services; (g) access the eCommify Apps Services in order to build a competitive product or service, or copy any features or functions of the eCommify Apps Services; (h) interfere with or disrupt the integrity or performance of the eCommify Apps Services; (i) attempt to gain unauthorized access to the eCommify Apps Services or their related systems or networks; (j) disclose to any third party any performance information or analysis relating to the eCommify Apps Services; (k) remove, alter or obscure any proprietary notices in or on the eCommify Apps Services including copyright or trademark notices; or (l) cause or permit any End User or third party to do any of the foregoing. Customer may access the eCommify Apps Services only through interfaces and protocols provided or authorized by eCommify Apps.

2.2. APIs

Customer’s use of any application programming interfaces (“APIs”) that are included in the eCommify Apps Services or otherwise made available to Customer by eCommify Apps, in each case, may be subject to additional terms and conditions or limitations as set forth on the applicable Order Form. Such limitations may include limitations on the number of transactions that Customer is permitted to make to the API or similar usage restrictions. eCommify Apps may utilize technical measures to prevent excess usage and/or stop usage of the API by Customer after any usage limitations are exceeded.

3. Support

eCommify Apps will use commercially reasonable efforts to provide the eCommify Apps Services in material conformance with the terms and conditions of this Agreement and, at no additional charge, with all updates or modifications to the eCommify Apps Services that eCommify Apps provides its customers with same package at no additional charge. Such updates or modifications will not include new or additional features and functions; provided, however, eCommify Apps may offer to make such new or additional features and functions available to Customer subject to payment of additional fees.

4. Ownership and Reservation of Rights

4.1. Customer

As between the parties, Customer owns all right, title and interest in and to the Customer Materials. Customer consents to eCommify Apps use of and access to the Customer Materials solely to the extent necessary to enable eCommify Apps to provide the eCommify Apps Services to Customer in accordance with this Agreement. For purposes of this Agreement, “Customer Materials” means any and all data, text, multimedia, graphics, audio, video, and other information or content provided by Customer to eCommify Apps for use with and to display through the eCommify Apps Services.

4.2. eCommify Apps

As between the parties and subject to the grant of rights in Section 1 of this Agreement, eCommify Apps and its licensors own all right, title and interest (including Intellectual Property Rights) in and to eCommify Apps systems, platforms, Feedback, Data Analytics, Services Data and related technologies are and will remain exclusively owned by eCommify Apps. eCommify Apps reserves all rights to the materials created by eCommify Apps not granted expressly in this Agreement. eCommify Apps Intellectual Property Rights includes all creations, copyright, trademarks, trade secrets, know-how, confidential information, inventions, discoveries, Services Data, Feedback and Data Analytics such as extracts, compilations, synthesis, data analyses, associated statistics, benchmarks, measurements, and other information that is de-identified and anonymized data. eCommify Apps may use and/or exploit its Intellectual Property Rights for its business purposes.

Subject to the limited license above and as between the parties, eCommify Apps owns and will continue to own all right, title and interest in and to all such deliverables and all discoveries, inventions, developments, improvements, works of authorship, information, data, analysis, know-how, ideas, technology, materials, and other work product arising out of or related to the Professional Services, together with all related Intellectual Property Rights therein Without limiting the foregoing, eCommify Apps may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the eCommify Apps Services and the Professional Services.

Data Analytics means that data that is processed by eCommify Apps software applications of and which processing may or may not include Customer data and such processing will: (i) create de-identified and anonymized data that cannot identify persons or entities; (ii) be combined with the data of other customers or additional data sources making up the data underpinning the Software applications; (iii) be presented in a way which does not reveal Customer’s identity and this analytical data is the essential part of the improvement of eCommify Apps software performance and these analytics forms part of eCommify Apps Intellectual Property Rights.

Feedback means the comments, questions, suggestions, ideas, insights, enhancement requests, recommendations or other information submitted by the Client and or users of the Services, from time to time, to eCommify Apps in relation to the access and use of the eCommify Apps Services and technology. eCommify Apps may freely use and/or exploit the Feedback in connection with the Service and/or any of its other products or services of eCommify Apps.

Services Data means the technical and other data eCommify Apps may obtain from the Customer’s use of the eCommify Apps service, software and platform and eCommify Apps may use and share this Service Data to improve, support, develop, provide and deliver reporting regarding the eCommify Apps service, software and platform during and after the term of this Agreement.

4.3. Reservation of Rights

Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

4.4. Third Party Providers

Customer acknowledges that the eCommify Apps Services (including the Customer Materials) are hosted and processed on a network owned and maintained by a third-party services provider. The eCommify Apps Services may contain or otherwise use certain third-party software.

5. Fees and Payment Terms

5.1. Fees

Subscription Fees: The Subscription Fee as detailed on the Sales Order form (including Licence and Support Fees) will be paid by the Customer either annually, quarterly or monthly in advance, as set out in the Sales Order. The Subscription fee will become due from date of signing of the Sales Order or the effective date detailed on the Sales Order. Subscription Fees are not dependent upon deliverables.

The Subscription Fee will remain fixed during the Initial Term of the Agreement, unless Customer usage requires eCommify Apps to upgrade the hosting provision for your eCommify Apps instance or Customer requests additional Services to be added into their instance.

Fee Adjustments: eCommify Apps’ platform, hosting and service fees are reviewed bi-annually and, where appropriate, our current price list is updated. If this increase applies to you, we will endeavour to notify you at least thirty (30) days in advance of the increase being applied and your next renewal point (be that monthly, quarterly, bi-annually or annually). The increased fees will apply at the start of the next renewal term. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at either: (i) eCommify Apps applicable package list price in effect at the time of the commencement of the applicable renewal term or (ii) will be the amounts per Order Form plus CPI or 5% whichever is greater.

Payment: Subscription Fees will be paid in accordance with the payment terms schedule(s) set out above by method of Direct Debit via eCommify Apps’ payment partner; Stripe. Payments automated by Stripe are attributed seven (7) day terms from date of invoice by default. This method of payment may be altered upon agreement of both parties and eCommify Apps are typically also able to support Bank Transfers and Credit Card payment, if required. eCommify Apps will be entitled to charge interest on all outstanding sums owed by you to eCommify Apps.

Any Subscription fees below AUD $1,000 (excluding GST) a month must be paid by Stripe or Credit Card, unless both parties agree in advance to Bank Transfer.

Payment Information: Customer will keep its contact information, billing information and direct debit / credit card / bank transfer details (where applicable) up to date. Changes may be made by emailing accounts@ecommify.io. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.

5.2. Late Fees

If any amounts invoiced hereunder are not received by eCommify Apps by the applicable due date, then such amounts shall accrue interest at the rate of 3% + Bank of England Base rate on the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.3. Taxes

Sales Tax: All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of associated Services. You shall have no liability for any taxes based upon our gross revenues or net income. All fees are exclusive of GST.

6. Security and Data

6.1. Security

eCommify Apps will use commercially reasonable efforts to prevent any unauthorized use, access, processing, destruction, loss or disclosure of any Customer Materials stored or processed by the eCommify Apps Services. In the case of a confirmed unauthorized use, access, processing, destruction, loss or disclosure of any such Customer Materials by a third party (a “Security Incident”), eCommify Apps will notify Customer after eCommify Apps becomes aware of the Security Incident.

7. Confidentiality

Neither party shall use any confidential information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s confidential information as it uses to protect its own confidential information of like nature. Neither party shall disclose the other party’s confidential information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such confidential information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s confidential information.

Injunctive Relief: Each party acknowledges that due to the unique nature of the other party’s confidential information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its confidential information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.

Other Exceptions: Notwithstanding the foregoing provisions in this Section, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of the Agreement; (v) in confidence, to auditors, accountants and their advisors; and (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure of this Agreement.

8. Data Protection

Each party shall at all times during the term of this Agreement comply with all applicable legislation pertaining to data protection, data privacy, data retention, and/or data security in Australia and all associated codes of practice and other guidance issued by any applicable data protection authority (“Data Protection Legislation”). To the extent applicable under Australian law, each party will obtain and maintain all appropriate consents and registrations required to allow that party to perform its obligations under this Agreement in compliance with the Australian data protection laws.

9. Representations, Warranties and Remedies

eCommify Apps Warranties: eCommify Apps represents and warrants to Customer that during the term it will provide the services including the support services in a manner consistent with this agreement. eCommify Apps does not warrant that Customer’s use of the services will be error-free or uninterrupted.

If eCommify Apps breaches the eCommify Apps warranties provided above, its sole liability and Customer’s exclusive remedy is for eCommify Apps to correct or re-perform any defective eCommify Apps Service at no additional cost to Customer. If eCommify Apps is not able to correct or re-perform in a reasonable period of time as agreed between eCommify Apps and the Customer, then the Customer may notify eCommify Apps of its intent to terminate the affected eCommify Apps Services. Upon receipt of such notice, eCommify Apps will refund of the unearned portion of any unearned Fees prepaid for these specific eCommify Apps Services.

Customer Warranties: Customer represents and warrants that: Customer has the legal power to enter into this agreement. Customer shall be responsible for the content and the operation of and transactions processed through the websites. eCommify Apps shall not be liable to Customer, any user or any third party for any use of or inaccuracy in any content or for any transactions processed through the websites.

Disclaimer: Except as specifically set out in this section the eCommify Apps systems and service is provided “as is”, without any representations and/or warranties and or conditions of any kind. eCommify Apps and its licensors and/or suppliers make no other representations and give no other warranties or conditions, express, implied, statutory, or otherwise regarding the service provided under this Agreement and eCommify Apps specifically disclaims any and all statutory representations, warranties and/or conditions against non-infringement and any and all implied representations, warranties and/or conditions of merchantability, merchantable quality, durability, title and fitness for a particular purpose to the maximum extent permitted by applicable law.

10. Indemnification Obligations

10.1. By eCommify Apps

eCommify Apps will defend, indemnify and hold harmless Customer and its directors, officers, End Users. Employees and agents (collectively, the “Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings and any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) alleging (i) that the eCommify Apps Services, when used as permitted under this Agreement, infringe any Intellectual Property Rights of any third party; and/or (ii) breach applicable law by eCommify Apps in the performance of this Agreement. In the event of a claim pursuant to this Section 10.1(i) eCommify Apps will, at its option and expense: (a) obtain for Customer the right to continue to use the eCommify Apps Services in accordance with this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the eCommify Apps Services to make them non-infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, eCommify Apps may, upon notice to Customer, terminate this Agreement, and refund the unearned portion of any Fees previously paid to eCommify Apps. eCommify Apps indemnification obligations do not extend to claims arising from or relating to: (i) any combination of the eCommify Apps Services (or any portion thereof) by any Customer Indemnitee with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (ii) any modification to the eCommify Apps Services by any Customer Indemnitees where the infringement would not have occurred but for such modification; (iii) the use of the eCommify Apps Services by any Customer Indemnitee in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (iv) the continued use of the eCommify Apps Services after eCommify Apps has provided substantially equivalent non-infringing software or service. The indemnity provided in this Section 10.1 and the foregoing remedies constitute eCommify Apps sole liability and Customer’s exclusive remedy in the event of a claim pursuant to this Section 10.1.

10.2. Customer Indemnity

Customer will defend, indemnify and hold harmless eCommify Apps and its directors, officers, employees and agents (collectively, the “eCommify Apps Indemnitees”) from and against any third party claims and indemnify eCommify Apps Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable lawyers fees, costs, penalties, interest and disbursements) arising out of, based on or related to (a) Customer’s use of the eCommify Apps Services; and/or (b) any claim that the Customer Materials infringes any Intellectual Property Rights of any third party; and/or (c) the gross negligence or wilful misconduct of Customer.

10.3. Process

The indemnifying party’s indemnification obligations under this Section 10 are conditioned upon the indemnified party: (a) giving prompt written notice of the claim to the indemnifying party once the indemnified party becomes aware of the claim (provided that failure to provide prompt written notice to the indemnifying party shall not alleviate an indemnifying party’s obligations under Section 10 to the extent any associated delay does not materially prejudice or impair the defense of the related claims); (b) granting the indemnifying party sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the claim; and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the claim. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification by the indemnifying party) without the indemnified party’s written consent.

11. Limitation of Liability

11.1. In no event shall eCommify Apps be liable to the Customer for any lost profits or for any incidental, punitive, indirect, special or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss), however caused and under any theory of liability (including negligence) and whether or not eCommify Apps has been advised of the possibility of such damage.

11.2. In no event shall eCommify Apps total aggregate liability for damages howsoever arising out of or related to this Agreement exceed the Subscription Licence fees paid by Customer in the twelve (12) months prior to the date on which the claim arose.

12. General

12.1. Relationship of Parties: The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.

12.2. Non-Solicitation: eCommify Apps and the Customer mutually agree that during the term of this Agreement and for one year after the date of completion of the Agreement, for any reason whatsoever, not to solicit, induce or engage directly or indirectly any person who was introduced by either Party, or who at such time was in the employment of either party or any of its subsidiaries, to leave their respective company.

A fee to the value equivalent to 12 x annual subscription will apply to the Customer should it hire any eCommify Apps staff to directly or indirectly work for it or a related entity.

12.3. Marketing & PR: The Customer agrees to eCommify Apps issuing the following marketing/PR materials

An announcement email, blog or press release of the launch of the project
A press release, email or blog following the project ‘go live’
A case study about the project, three months after successful launch.

12.4. Assignment: Customer may not assign this agreement without the prior written consent of eCommify Apps. eCommify Apps may assign this Agreement at any time.

12.5. Choice of Law: This Agreement shall be governed by and interpreted in accordance with the laws of Australia, and the parties irrevocably submit to the jurisdiction of the courts of Australia with respect to any dispute or claim arising out of or in connection with this Agreement.

12.6. Compliance with Laws: Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries.

12.7. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

12.8. Force Majeure: Except for obligations to pay any fees under this Agreement, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than thirty (30) calendar days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.

13. Term & Termination

Term: Unless terminated earlier pursuant to the terms and conditions of this Agreement, this Agreement shall commence on the Effective Date and shall remain in force for an initial term of one (1) year (the “Initial Term”). Following the Initial Term, the Agreement shall automatically renew for a further one (1) year ( the “Renewal Term”) and the Customer may terminate this Agreement at any time during any Renewal Term upon ninety (90) days written notice to eCommify Apps.

Termination: Either party may terminate this Agreement with written notice if the other party: (i) assigns or attempts to assign this Agreement to a third-party; (ii) fails to correct a material breach of its obligations under this Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.

These Terms of Service (these “Terms”), together with the applicable Order Form(s) and Statement(s) of Work, each as defined below, referencing these Terms (collectively, the “Agreement”) are made and entered into by and between eCommify Apps Pty Ltd with a Registered Office at 78 Herald Street, Cheltenham VIC 3192 AU (“eCommify Apps”) and the customer identified in the applicable Order Form or Statement of Work (“Customer”) as of the effective date of the first Order Form or Statement of Work (the “Effective Date”). By executing an order form or statement of work that references this Agreement (as applicable, an “Order Form” or “Statement of Work”), or indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by eCommify Apps, Customer agrees to be bound by the Agreement. Any individual accepting the Agreement on behalf of Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to the Agreement. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE ECOMMIFY APPS SERVICES (as defined below).

The parties agree as follows:

1. eCommify Apps Services

1.1. This Agreement governs (a) Customer’s access to and use of eCommify App’s proprietary, web-based software solution(s) as described in the applicable Order Form (the “eCommify Apps Services”); and (b) eCommify App’s performance and Customer’s receipt of managed services or other professional services as described in the applicable Statement of Work (the “Professional Services”). eCommify Apps grants to Customer and its authorized employees and agents (“End Users”) a limited, non-transferable, non-exclusive right during the term set forth on the applicable Order Form (the “Order Term”) to access and use the eCommify Apps Services for Customer’s business purposes.

1.2. In the event that Customer elects to have eCommify Apps perform any consulting, training or other professional services (“Professional Services”), the parties will enter into a Statement of Work governing the provision of such Professional Services. Each Statement of Work will be subject to the terms and conditions of this Agreement. Each Statement of Work will, at a minimum, include: (a) a description of the specific Professional Services to be provided; (b) the schedule for the performance of the Professional Services; and (c) the fees payable for such Professional Services. To the extent eCommify Apps creates or develops any deliverables arising from or related to the Professional Services, upon Customer’s payment for the applicable Professional Services, and to the extent Customer is not in breach of this Agreement, eCommify Apps grants to Customer a limited, non-transferable, non-exclusive right, during the applicable Order Term, to access and use such deliverables solely for Customer’s business purposes, subject to the use restrictions set forth in this Agreement and/or the applicable Order Form. Customer acknowledges that the deliverables are eCommify App’s Confidential Information (as defined below).

1.3. Passwords

Customer is responsible for protecting and safeguarding any passwords, API keys, user IDs or other credentials and login information (collectively, “Passwords“) that have been provided to Customer or that are generated in connection with Customer’s use of the eCommify App Services. Customer will not disclose or make available Passwords to any third-party other than to authorized end users and will use best efforts to prevent unauthorized access to, or use of, the Passwords or the eCommify Apps Services. Customer is fully responsible for all activities that occur in connection with the Passwords. Customer will immediately notify eCommify Apps in writing of any unauthorized use of the eCommify Apps Services that comes to Customer’s attention.

2. Restrictions

2.1. Acceptable Use

Except as expressly authorized by this Agreement, Customer will not: (a) modify, disclose, alter, translate or create derivative works of the eCommify Apps Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the eCommify Apps Services (or any components thereof); (c) derive, or attempt to derive, the source code of, or disassemble, decompile, reverse compile, or reverse engineer the eCommify Apps Services or any portion thereof (except to the extent and for the express purposes authorized by any and all applicable country or state laws (collectively, “Laws”)); (d) use the eCommify Apps Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the eCommify Apps Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the eCommify Apps Services; (g) access the eCommify Apps Services in order to build a competitive product or service, or copy any features or functions of the eCommify Apps Services; (h) interfere with or disrupt the integrity or performance of the eCommify Apps Services; (i) attempt to gain unauthorized access to the eCommify Apps Services or their related systems or networks; (j) disclose to any third party any performance information or analysis relating to the eCommify Apps Services; (k) remove, alter or obscure any proprietary notices in or on the eCommify Apps Services including copyright or trademark notices; or (l) cause or permit any End User or third party to do any of the foregoing. Customer may access the eCommify Apps Services only through interfaces and protocols provided or authorized by eCommify Apps.

2.2. APIs

Customer’s use of any application programming interfaces (“APIs”) that are included in the eCommify Apps Services or otherwise made available to Customer by eCommify Apps, in each case, may be subject to additional terms and conditions or limitations as set forth on the applicable Order Form. Such limitations may include limitations on the number of transactions that Customer is permitted to make to the API or similar usage restrictions. eCommify Apps may utilize technical measures to prevent excess usage and/or stop usage of the API by Customer after any usage limitations are exceeded.

3. Support

eCommify Apps will use commercially reasonable efforts to provide the eCommify Apps Services in material conformance with the terms and conditions of this Agreement and, at no additional charge, with all updates or modifications to the eCommify Apps Services that eCommify Apps provides its customers with same package at no additional charge. Such updates or modifications will not include new or additional features and functions; provided, however, eCommify Apps may offer to make such new or additional features and functions available to Customer subject to payment of additional fees.

4. Ownership and Reservation of Rights

4.1. Customer

As between the parties, Customer owns all right, title and interest in and to the Customer Materials. Customer consents to eCommify Apps use of and access to the Customer Materials solely to the extent necessary to enable eCommify Apps to provide the eCommify Apps Services to Customer in accordance with this Agreement. For purposes of this Agreement, “Customer Materials” means any and all data, text, multimedia, graphics, audio, video, and other information or content provided by Customer to eCommify Apps for use with and to display through the eCommify Apps Services.

4.2. eCommify Apps

As between the parties and subject to the grant of rights in Section 1 of this Agreement, eCommify Apps and its licensors own all right, title and interest (including Intellectual Property Rights) in and to eCommify Apps systems, platforms, Feedback, Data Analytics, Services Data and related technologies are and will remain exclusively owned by eCommify Apps. eCommify Apps reserves all rights to the materials created by eCommify Apps not granted expressly in this Agreement. eCommify Apps Intellectual Property Rights includes all creations, copyright, trademarks, trade secrets, know-how, confidential information, inventions, discoveries, Services Data, Feedback and Data Analytics such as extracts, compilations, synthesis, data analyses, associated statistics, benchmarks, measurements, and other information that is de-identified and anonymized data. eCommify Apps may use and/or exploit its Intellectual Property Rights for its business purposes.

Subject to the limited license above and as between the parties, eCommify Apps owns and will continue to own all right, title and interest in and to all such deliverables and all discoveries, inventions, developments, improvements, works of authorship, information, data, analysis, know-how, ideas, technology, materials, and other work product arising out of or related to the Professional Services, together with all related Intellectual Property Rights therein Without limiting the foregoing, eCommify Apps may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the eCommify Apps Services and the Professional Services.

Data Analytics means that data that is processed by eCommify Apps software applications of and which processing may or may not include Customer data and such processing will: (i) create de-identified and anonymized data that cannot identify persons or entities; (ii) be combined with the data of other customers or additional data sources making up the data underpinning the Software applications; (iii) be presented in a way which does not reveal Customer’s identity and this analytical data is the essential part of the improvement of eCommify Apps software performance and these analytics forms part of eCommify Apps Intellectual Property Rights.

Feedback means the comments, questions, suggestions, ideas, insights, enhancement requests, recommendations or other information submitted by the Client and or users of the Services, from time to time, to eCommify Apps in relation to the access and use of the eCommify Apps Services and technology. eCommify Apps may freely use and/or exploit the Feedback in connection with the Service and/or any of its other products or services of eCommify Apps.

Services Data means the technical and other data eCommify Apps may obtain from the Customer’s use of the eCommify Apps service, software and platform and eCommify Apps may use and share this Service Data to improve, support, develop, provide and deliver reporting regarding the eCommify Apps service, software and platform during and after the term of this Agreement.

4.3. Reservation of Rights

Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

4.4. Third Party Providers

Customer acknowledges that the eCommify Apps Services (including the Customer Materials) are hosted and processed on a network owned and maintained by a third-party services provider. The eCommify Apps Services may contain or otherwise use certain third-party software.

5. Fees and Payment Terms

5.1. Fees

Subscription Fees: The Subscription Fee as detailed on the Sales Order form (including Licence and Support Fees) will be paid by the Customer either annually, quarterly or monthly in advance, as set out in the Sales Order. The Subscription fee will become due from date of signing of the Sales Order or the effective date detailed on the Sales Order. Subscription Fees are not dependent upon deliverables.

The Subscription Fee will remain fixed during the Initial Term of the Agreement, unless Customer usage requires eCommify Apps to upgrade the hosting provision for your eCommify Apps instance or Customer requests additional Services to be added into their instance.

Fee Adjustments: eCommify Apps’ platform, hosting and service fees are reviewed bi-annually and, where appropriate, our current price list is updated. If this increase applies to you, we will endeavour to notify you at least thirty (30) days in advance of the increase being applied and your next renewal point (be that monthly, quarterly, bi-annually or annually). The increased fees will apply at the start of the next renewal term. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at either: (i) eCommify Apps applicable package list price in effect at the time of the commencement of the applicable renewal term or (ii) will be the amounts per Order Form plus CPI or 5% whichever is greater.

Payment: Subscription Fees will be paid in accordance with the payment terms schedule(s) set out above by method of Direct Debit via eCommify Apps’ payment partner; Stripe. Payments automated by Stripe are attributed seven (7) day terms from date of invoice by default. This method of payment may be altered upon agreement of both parties and eCommify Apps are typically also able to support Bank Transfers and Credit Card payment, if required. eCommify Apps will be entitled to charge interest on all outstanding sums owed by you to eCommify Apps.

Any Subscription fees below AUD $1,000 (excluding GST) a month must be paid by Stripe or Credit Card, unless both parties agree in advance to Bank Transfer.

Payment Information: Customer will keep its contact information, billing information and direct debit / credit card / bank transfer details (where applicable) up to date. Changes may be made by emailing accounts@ecommify.io. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.

5.2. Late Fees

If any amounts invoiced hereunder are not received by eCommify Apps by the applicable due date, then such amounts shall accrue interest at the rate of 3% + Bank of England Base rate on the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.3. Taxes

Sales Tax: All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of associated Services. You shall have no liability for any taxes based upon our gross revenues or net income. All fees are exclusive of GST.

6. Security and Data

6.1. Security

eCommify Apps will use commercially reasonable efforts to prevent any unauthorized use, access, processing, destruction, loss or disclosure of any Customer Materials stored or processed by the eCommify Apps Services. In the case of a confirmed unauthorized use, access, processing, destruction, loss or disclosure of any such Customer Materials by a third party (a “Security Incident”), eCommify Apps will notify Customer after eCommify Apps becomes aware of the Security Incident.

7. Confidentiality

Neither party shall use any confidential information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s confidential information as it uses to protect its own confidential information of like nature. Neither party shall disclose the other party’s confidential information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such confidential information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s confidential information.

Injunctive Relief: Each party acknowledges that due to the unique nature of the other party’s confidential information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its confidential information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.

Other Exceptions: Notwithstanding the foregoing provisions in this Section, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of the Agreement; (v) in confidence, to auditors, accountants and their advisors; and (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure of this Agreement.

8. Data Protection

Each party shall at all times during the term of this Agreement comply with all applicable legislation pertaining to data protection, data privacy, data retention, and/or data security in Australia and all associated codes of practice and other guidance issued by any applicable data protection authority (“Data Protection Legislation”). To the extent applicable under Australian law, each party will obtain and maintain all appropriate consents and registrations required to allow that party to perform its obligations under this Agreement in compliance with the Australian data protection laws.

9. Representations, Warranties and Remedies

eCommify Apps Warranties: eCommify Apps represents and warrants to Customer that during the term it will provide the services including the support services in a manner consistent with this agreement. eCommify Apps does not warrant that Customer’s use of the services will be error-free or uninterrupted.

If eCommify Apps breaches the eCommify Apps warranties provided above, its sole liability and Customer’s exclusive remedy is for eCommify Apps to correct or re-perform any defective eCommify Apps Service at no additional cost to Customer. If eCommify Apps is not able to correct or re-perform in a reasonable period of time as agreed between eCommify Apps and the Customer, then the Customer may notify eCommify Apps of its intent to terminate the affected eCommify Apps Services. Upon receipt of such notice, eCommify Apps will refund of the unearned portion of any unearned Fees prepaid for these specific eCommify Apps Services.

Customer Warranties: Customer represents and warrants that: Customer has the legal power to enter into this agreement. Customer shall be responsible for the content and the operation of and transactions processed through the websites. eCommify Apps shall not be liable to Customer, any user or any third party for any use of or inaccuracy in any content or for any transactions processed through the websites.

Disclaimer: Except as specifically set out in this section the eCommify Apps systems and service is provided “as is”, without any representations and/or warranties and or conditions of any kind. eCommify Apps and its licensors and/or suppliers make no other representations and give no other warranties or conditions, express, implied, statutory, or otherwise regarding the service provided under this Agreement and eCommify Apps specifically disclaims any and all statutory representations, warranties and/or conditions against non-infringement and any and all implied representations, warranties and/or conditions of merchantability, merchantable quality, durability, title and fitness for a particular purpose to the maximum extent permitted by applicable law.

10. Indemnification Obligations

10.1. By eCommify Apps

eCommify Apps will defend, indemnify and hold harmless Customer and its directors, officers, End Users. Employees and agents (collectively, the “Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings and any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) alleging (i) that the eCommify Apps Services, when used as permitted under this Agreement, infringe any Intellectual Property Rights of any third party; and/or (ii) breach applicable law by eCommify Apps in the performance of this Agreement. In the event of a claim pursuant to this Section 10.1(i) eCommify Apps will, at its option and expense: (a) obtain for Customer the right to continue to use the eCommify Apps Services in accordance with this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the eCommify Apps Services to make them non-infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, eCommify Apps may, upon notice to Customer, terminate this Agreement, and refund the unearned portion of any Fees previously paid to eCommify Apps. eCommify Apps indemnification obligations do not extend to claims arising from or relating to: (i) any combination of the eCommify Apps Services (or any portion thereof) by any Customer Indemnitee with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (ii) any modification to the eCommify Apps Services by any Customer Indemnitees where the infringement would not have occurred but for such modification; (iii) the use of the eCommify Apps Services by any Customer Indemnitee in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (iv) the continued use of the eCommify Apps Services after eCommify Apps has provided substantially equivalent non-infringing software or service. The indemnity provided in this Section 10.1 and the foregoing remedies constitute eCommify Apps sole liability and Customer’s exclusive remedy in the event of a claim pursuant to this Section 10.1.

10.2. Customer Indemnity

Customer will defend, indemnify and hold harmless eCommify Apps and its directors, officers, employees and agents (collectively, the “eCommify Apps Indemnitees”) from and against any third party claims and indemnify eCommify Apps Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable lawyers fees, costs, penalties, interest and disbursements) arising out of, based on or related to (a) Customer’s use of the eCommify Apps Services; and/or (b) any claim that the Customer Materials infringes any Intellectual Property Rights of any third party; and/or (c) the gross negligence or wilful misconduct of Customer.

10.3. Process

The indemnifying party’s indemnification obligations under this Section 10 are conditioned upon the indemnified party: (a) giving prompt written notice of the claim to the indemnifying party once the indemnified party becomes aware of the claim (provided that failure to provide prompt written notice to the indemnifying party shall not alleviate an indemnifying party’s obligations under Section 10 to the extent any associated delay does not materially prejudice or impair the defense of the related claims); (b) granting the indemnifying party sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the claim; and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the claim. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification by the indemnifying party) without the indemnified party’s written consent.

11. Limitation of Liability

11.1. In no event shall eCommify Apps be liable to the Customer for any lost profits or for any incidental, punitive, indirect, special or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss), however caused and under any theory of liability (including negligence) and whether or not eCommify Apps has been advised of the possibility of such damage.

11.2. In no event shall eCommify Apps total aggregate liability for damages howsoever arising out of or related to this Agreement exceed the Subscription Licence fees paid by Customer in the twelve (12) months prior to the date on which the claim arose.

12. General

12.1. Relationship of Parties: The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.

12.2. Non-Solicitation: eCommify Apps and the Customer mutually agree that during the term of this Agreement and for one year after the date of completion of the Agreement, for any reason whatsoever, not to solicit, induce or engage directly or indirectly any person who was introduced by either Party, or who at such time was in the employment of either party or any of its subsidiaries, to leave their respective company.

A fee to the value equivalent to 12 x annual subscription will apply to the Customer should it hire any eCommify Apps staff to directly or indirectly work for it or a related entity.

12.3. Marketing & PR: The Customer agrees to eCommify Apps issuing the following marketing/PR materials

An announcement email, blog or press release of the launch of the project
A press release, email or blog following the project ‘go live’
A case study about the project, three months after successful launch.

12.4. Assignment: Customer may not assign this agreement without the prior written consent of eCommify Apps. eCommify Apps may assign this Agreement at any time.

12.5. Choice of Law: This Agreement shall be governed by and interpreted in accordance with the laws of Australia, and the parties irrevocably submit to the jurisdiction of the courts of Australia with respect to any dispute or claim arising out of or in connection with this Agreement.

12.6. Compliance with Laws: Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries.

12.7. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

12.8. Force Majeure: Except for obligations to pay any fees under this Agreement, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than thirty (30) calendar days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.

13. Term & Termination

Term: Unless terminated earlier pursuant to the terms and conditions of this Agreement, this Agreement shall commence on the Effective Date and shall remain in force for an initial term of one (1) year (the “Initial Term”). Following the Initial Term, the Agreement shall automatically renew for a further one (1) year ( the “Renewal Term”) and the Customer may terminate this Agreement at any time during any Renewal Term upon ninety (90) days written notice to eCommify Apps.

Termination: Either party may terminate this Agreement with written notice if the other party: (i) assigns or attempts to assign this Agreement to a third-party; (ii) fails to correct a material breach of its obligations under this Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.