1            Definitions and interpretation

1.1         Definitions

In this Agreement:

Agreement means this Agreement as constituted by the Terms and any other annexure, attachments and schedules and any subsequent written amendments.

Authorized Form means the electronic information sheet circulated by TRAILD to the Customer to collect information relating to the Authorized Users, including their name, position within the Customer’s organization and email address, as well as any other information reasonably required by TRAILD from time to time in order to provide the TRAILD Services.

Authorized Users means the named individuals authorized by the Customer to access and use the TRAILD Services as notified to TRAILD by the Customer using the Authorized Form, being the primary point of contact between the Customer and TRAILD in relation to all matters concerning the TRAILD Services and this Agreement.

Confidential Information means all trade secrets, industrial processes, Intellectual Property Rights, and information concerning the business or finances of a party or its customers, suppliers or retailers and any information of a party which would reasonably be regarded as confidential, disclosed by a party to the other party before or after the date of this Agreement including, without limitation, the terms of this Agreement, the TRAILD Data, and the Customer Data.

CPI means, at TRAILD’s discretion, either (a) 3% per annum or (b) the Consumer Price Index or other government published measure of price inflation that is in the opinion of TRAILD (acting reasonably), most relevant to the Customer’s commercial activities.

Customer includes the customer described in the Details page, its subsidiaries, successors and permitted assigns.  For clarity, reference to Customer shall include the Authorized Users. 

Customer Applications means those applications and products specified in the order form or proposal or otherwise approved in writing by TRAILD from time to time which allows the Customer’s or a third party’s product or products (including the Documents or software holding the Documents) to integrate with the TRAILD Systems.  

Customer Data means any data transmitted between Customer Applications and the TRAILD Systems initiated by the Customer, or any data which is input into the TRAILD Systems by the Customer, including the Documents. Any Customer Data so transmitted or input into the TRAILD Systems shall be subject to TRAILD’s prior consent.

Customer IP means all Intellectual Property Rights in the Customer Data.

Data means the TRAILD Data and the Customer Data.

Documents means documents, data, material, or information of whatever nature provided by the Customer, the Customer’s suppliers, contractors, or other third parties on behalf of the Customer that enable or support TRAILD to provide the TRAILD Services in good faith.  Documents forms part of the Customer Data.

Fees means the fees payable by the Customer for the TRAILD Services and for other chargeable services provided by TRAILD to the Customer from time to time as set out in either (a) the order form or proposal accepted by the Customer as amended from time to time in accordance with this agreement or (b) where the Customer’s subscription to the TRAILD Services is wholly managed via the Customer’s Enterprise Resource Planning software provider, the purchase order or equivalent form or agreement between the Customer and the relevant Enterprise Resource Planning software provider.

Initial Term means a period of time equivalent to the billing frequency specified on either (a) the order form or proposal accepted by the Customer, beginning on the Start Date or, (b) where the Customer’s subscription to the TRAILD Services is managed via the Customer’s Enterprise Resource Planning software provider, the purchase order or equivalent form or agreement between the Customer and the relevant Enterprise Resource Planning software provider.

Intellectual Property Rights means statutory and other proprietary rights in respect of copyright and similar rights, inventions, patents, plant varieties, registered and unregistered trademarks, registered and unregistered designs, circuit layouts and confidential information; business names; domain names; and similar industrial, commercial, and intellectual property (including formulae, recipes and know how).

Laws means all applicable local, state, federal and international laws, by-laws, rules, regulations, and codes of conduct including (without limitation) those relating to privacy, data security, confidentiality, export control and electronic commutations.

Loss means any loss of any kind whatsoever, whether actual, contingent or prospective, including any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage.

Personal Information has the meaning given to that expression in the Privacy Act.

Privacy Act means relevant privacy and data integrity legislation in either the United States of America, Australia, New Zealand, South Africa, the United Kingdom, the European Union or such other jurisdiction that TRAILD notifies it is compliant with in writing.

Related Entity has the meaning provided in the relevant corporations or companies legislation in either the United States of America, Australia, New Zealand, South Africa, the United Kingdom, the European Union or such other jurisdiction that TRAILD notifies it is compliant with in writing.

Representative means any director, officer, employee, agent, contractor, subcontractor, or Related Entity of a party.

Sales Tax means any tax or other levies payable to a governing body in relation to the provision of goods or services, and includes Sales Tax, Goods and Services Tax and Value Added Tax.

Start Date means either (a) the start date set out in on the order form or proposal for the supply of the TRAILD Services accepted by the Customer or the date otherwise agreed with the Customer as the TRAILD go-live date, or (b) where the Customer’s subscription to the TRAILD Services is managed via the Customer’s Enterprise Resource Planning software provider, the start date or equivalent set out in the purchase order or equivalent form or agreement between the Customer and the relevant Enterprise Resource Planning software provider.

Term means the term of this Agreement being the Initial Term and any renewals or extensions, subject to termination in accordance with this Agreement.

Terms means the Details page and clauses 1 to 16 of this document.

TRAILD means the relevant TRAILD entity set forth in the Details.

TRAILD Data means all information, content and data disclosed or provided to the Customer by TRAILD or accessed, obtained or retrieved by the Customer from TRAILD during the provision of the TRAILD Services or via the TRAILD Systems, including through the integration of Customer Applications with the TRAILD Systems, but does not include Customer Data.

TRAILD IP means all Intellectual Property Rights in the TRAILD Systems, TRAILD Services and TRAILD Data.

TRAILD Representative means the TRAILD employee or contractor specified in the order form or proposal or otherwise provided at the Customer’s request who will be the primary point of contact between TRAILD and the Customer in relation to all matters concerning this Agreement.

TRAILD Services means the data extraction, risk assessment, document sharing, document interpretation services and approval management services provided by TRAILD to the Customer with respect to Documents transmitted to TRAILD by the Customer via the Customer Applications and using the TRAILD Systems, including any updates, variations, modifications and enhancements to such services from time to time. 

TRAILD Systems means the software or application programming interface made available by TRAILD to the Customer from time to time to enable functionality of the TRAILD Services and to allow for the integration between the Customer Applications and such systems in order to interface with each other and/or to enable the transfer of Data between the TRAILD Systems and the Customer Applications.

TRAILD Website means the website located at www.TRAILDtech.com or any other relevant websites owned and operated by TRAILD.

1.2         Interpretation

In this Agreement:

(a) “including” and similar expressions are not words of limitation;

(b) money amounts are stated in Australian currency unless otherwise specified;

(c) this Agreement is not to be interpreted against a party merely because it was responsible for its preparation;

(d) references to statutes or applicable laws means those statutes or laws as amended from time to time.

2            Term

This Agreement begins on the Start Date and continues for the Initial Term unless terminated in accordance with its terms.  After the Initial Term, this Agreement continues for rolling additional periods equal to the Initial Term unless terminated in accordance with this Agreement.

3            Authorized Users

3.1         Authorized Users

The Customer shall:

(a) be responsible for any acts, omissions and the compliance with this Agreement by an Authorized User, as well as determining which individual is to be an Authorized User and the level of access to be granted to that Authorized User;

(b) not disclose or transfer any TRAILD Data to any person other than its Authorized Users;

(c) disclose to its Authorized Users TRAILD Data only as permitted by this Agreement and only to the extent necessary for receipt of the TRAILD Services;   

(d) keep the Authorized Users under review and provide an up-to-date list of Authorized Users to TRAILD regularly and upon request;

(e) where any usernames and/or passwords are issued to any Authorized Users, take all reasonable steps to safeguard, protect and prevent unauthorized use of such usernames, passwords or both;

(f) be responsible for ensuring that all Authorized Users who access the TRAILD System through an internet connection are aware of the TRAILD Systems terms of use, and procure that they comply with them; and

(g) not and procure that the Authorized Users shall not attempt to gain unauthorized access to the TRAILD Systems, the server on which the TRAILD Systems are stored or any server, computer or database connected to the TRAILD Systems.

3.2         Nature of arrangement

TRAILD’s relationship with the Customer is non-exclusive and TRAILD is free to enter into arrangements with other parties in relation to similar services or solutions.  Nothing contained in this Agreement will be deemed to be construed by the parties or any third party as creating a partnership, agency relationship or joint venture between the parties.

3.3         Binding Customer

The Customer represents and warrants that the Authorized User has authority to make decisions on the Customer’s behalf and to bind the Customer.

4            License, Customer Applications, and Integration

4.1         License

TRAILD grants the Customer a non-transferable, non-sub-licensable and non-exclusive license to access and use the TRAILD Systems for the limited purposes of:

(a) providing the Customer with the TRAILD Services;

(b) enabling the Customer to integrate and transmit the approved Customer Data between the Customer Applications and the TRAILD Systems (TRAILD will provide reasonable assistance to the Customer in this regard).

The license described in this clause 4.1 shall expire on the earlier of termination or expiry of this Agreement and shall be immediately suspended at TRAILD’s discretion upon a breach by the Customer of this Agreement.  

4.2      Compliance with TRAILD’s directions

The Customer must comply with the lawful directions of TRAILD or its Representatives as may be given from time to time in relation to the performance of this Agreement.

4.3         Disclosure of Information and Compliance

The Customer shall ensure:

(a) all necessary rights, releases and permissions, and/or consents have been obtained to provide and allow the processing, use and disclosure of any personal information transmitted to the TRAILD Systems by the Customer or its Representatives (including Customer Data);

(b) neither the Customer Data nor its processing, use or disclosure will violate the Customer’s own privacy policy, any Laws (including, without limitation, Laws relating to data privacy, data transfer, international communications and the export of technical or personal data) and/ or any third-party rights (including breach of third party Intellectual Property Rights, Confidential Information, Privacy Laws or rights of publicity); and

(c) the TRAILD Systems will not be used directly or indirectly to support, or to further, any activities prohibited by any Laws (e.g., money laundering).

5            General Customer Acknowledgements

The Customer acknowledges:

(a) that it is responsible for, and must provide and maintain, any interface, system or service required for receipt of Data obtained through the TRAILD Systems or for the push of Customer Data from its Customer Applications to the TRAILD Systems;

(b) the effectiveness of the TRAILD Services and TRAILD Systems are dependent in whole or in part on the accuracy, relevance and extent of the Customer Data and other information provided to TRAILD by the Customer as requested by TRAILD from time to time, including (without limitation) the Documents;

(c) that it will not use the TRAILD Services for the benefit of any third party;

(d) that it will not incorporate the TRAILD Systems into any other product or service which has not been permitted pursuant to this Agreement without TRAILD’s prior written approval;

(e) that all necessary rights, releases, consents, and permissions have been obtained and allow the processing, use and disclosure of Customer Data by the Customer to TRAILD under this Agreement;

(f) that it will comply with TRAILD’s reasonable security requirements notified to the Customer from time to time including ensuring that the Customer Applications are at all times protected against unauthorized access, use, modification, processing, disclosure or other misuse;

(g) that it will not introduce into the TRAILD Systems via any integration with the Customer Applications or any other means including any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature or which are designed to interfere with the operation, availability or performance of the TRAILD Systems;

(h) that it will not access or use the TRAILD IP for competitive purposes (including to connect to a competitor product or to create its own competitive product) or publicly disseminate performance information or analysis relating to the TRAILD IP;

(i) that it will not use reverse engineering or other techniques to access logic, internal data structures or internal services utilized by the TRAILD Services or TRAILD Systems or otherwise translate, reverse-engineer, decompile, disassemble or copy any source code, part of or underlying ideas or algorithms of the TRAILD Services or TRAILD Systems by any means;

(j) that it will not provide, rent, lease, license, transfer or grant any rights in the TRAILD Systems or TRAILD Services in full or in part, to or for the benefit of any third party, provided that Authorized Users may access and use the TRAILD Systems in accordance with this Agreement;

(k) that it shall ensure any Customer Data transmitted to the TRAILD Systems will be free of any operational problems, bugs, defects, or other issues. The Customer shall correct any bug, defect or other issue;

(l) that it will not remove, alter or obscure any identification, copyright, trademark or other proprietary notices, labels or marks on or in the TRAILD Systems;

(m) that it will be responsible for ensuring they have all necessary equipment in good working order, free of malware, and in compliance with all technical specifications required to access and use the TRAILD Services and TRAILD Systems, including to integrate the Customer Applications with the TRAILD Systems;

(n) that it shall use, as applicable, TRAILD Systems only in relation to the TRAILD Services during the term of receiving such Services and in accordance with any applicable terms of use issued or made available by TRAILD from time to time;

(o) that it shall not copy, modify, reformat, adapt, incorporate into or with other websites, or create a derivative work of any part of the TRAILD Systems or TRAILD Service;

(p) that TRAILD will not be responsible for the inaccessibility of the TRAILD Services by the Customer due to a technical or other fault caused by or as a result of the Customer’s systems, including (without limitation) internet connection failure, geographical or device inaccessibility and wireless carrier charges; and

(q) that it will comply with all applicable Laws while receiving the benefit of the TRAILD Services under this Agreement.

6            Use of Data

6.1         Use of TRAILD Data

If TRAILD allows the Customer Applications to retrieve any TRAILD Data from the TRAILD Systems, the Customer must:

(a) access only the minimum data the Customer requires in order to receive the benefit of the TRAILD Services, and if such data is being extracted by the Customer Applications, the minimum amount required in order for such applications to work properly;

(b) use the TRAILD Data solely for the purpose of interfacing the Customer Applications with the TRAILD Systems if required to receive the benefit of the TRAILD Services, and must not store, transfer, sell, use, commercialize, aggregate or deal with the TRAILD Data for any other purpose; and

(c) ensure the Customer Data and the TRAILD Data is collected, processed, transmitted, maintained and used in accordance with this Agreement and all applicable laws (including the Privacy Act and any other applicable laws and codes dealing with privacy).

6.2         Use of Customer Data 

The Customer acknowledges that:

(a) unless otherwise expressed in this Agreement, the Customer retains all of its rights to any Customer Data that is transmitted to the TRAILD Systems by the Customer. Only to the extent necessary to provide the TRAILD Services and otherwise to operate, improve and maintain the TRAILD Systems, the Customer grants TRAILD a worldwide, transferable, non-exclusive, royalty-free right to use, copy, store, transmit, distribute, and modify any Customer Data;

(b) TRAILD will use all reasonable endeavors to protect Confidential Information but assumes no liability for any Confidential Information (whether such information forms part of the Customer Data or otherwise) transmitted to TRAILD by the Customer, notwithstanding whether such information is owned by the Customer or a third party;

(c) TRAILD will endeavor to ensure continued access to the Customer Data, but does not provide an archiving service, and expressly disclaims all storage obligations with respect to any Customer Data following termination of this Agreement;

(d) In the event of termination of the TRAILD Services in accordance with this agreement, TRAILD will endeavor to assist the customer with exporting any data that is available and uniquely identifiable, if the Customer makes a request for assistance within 14 days of termination; and 

(e) the Customer is solely responsible for maintaining backups of Customer Data on its own systems.

7            Fees

7.1         Fees

The Customer agrees to pay TRAILD the Fees for any chargeable services (including the TRAILD Services) provided by TRAILD from time to time, without deduction or set-off.

7.2         Payment of Fees

The Customer must pay TRAILD the Fees within 30 days of the date provided on TRAILD’s tax invoice. Billing will commence from the Start Date unless otherwise agreed in writing.

7.3         Variation of Fees

The Customer acknowledges and agrees that it has supplied TRAILD with an estimated usage (number of invoices), which has allowed TRAILD to calculate a pricing tier, and that if actual usage differs materially from the estimate, TRAILD may vary Fees (change tier) by 30 days’ written notice to the Customer. In addition to the foregoing, the Fees for any renewal term may be subject to an increase from the prior term’s Fees. TRAILD will provide the Customer with written notice of any Fee adjustments at least 30 days before the relevant renewal date. The Customer’s continued use of the TRAILD Systems after the renewal date constitutes acceptance of the adjusted Fees by the Customer.

Upon each anniversary of the Start Date of this Agreement, TRAILD may increase Fees by the CPI (at TRAILD’s discretion) without prior notice.

7.4         Tax

All amounts payable by Customer to TRAILD for the TRAILD Services shall be exclusive of any Sales Tax or other governmental taxes or levies payable in respect of the Fee and Customer shall, in addition to the Fee, pay TRAILD all amounts of Sales Tax or other governmental taxes or levies imposed on TRAILD with respect to the Fee, and agrees to indemnify TRAILD in respect of any such imposition resulting from any failure by TRAILD to collect, or by Customer to make payment of any amount properly chargeable to it on account.

7.5         Interest

If the Customer fails to make any payment as required by this Agreement, the Customer shall pay interest at the rate of 3% above the London Inter-Bank Offer Rate (LIBOR), where applicable, on any outstanding amount from the due date of payment until the outstanding amount is paid in full.

8            Disclaimer

8.1         TRAILD IP Disclaimer

TRAILD makes no express or implied representations, warranties or guarantees in respect of the TRAILD IP. Without limitation, TRAILD makes no representation, warranty or guarantee that:

(a) the TRAILD IP including the TRAILD Services will be available at all times;

(b) the TRAILD IP or the access and use of the TRAILD IP including the TRAILD Services by the Customer, will be error-free, defect-free, secure, uninterrupted or compatible with the Customer’s equipment or software configurations;

(c) the TRAILD IP including the TRAILD Services will be fit for the Customer’s or any Authorized User’s purpose; or

(d) TRAILD will correct any error or defect in the TRAILD IP including the TRAILD Services.

8.2         Support and Modifications

TRAILD must provide reasonable remote support by suitable TRAILD personnel to the Customer to facilitate the Customer’s successful use of the TRAILD Services and TRAILD Systems. Typical support is less than 2 hours per month, but TRAILD shall provide all reasonable additional assistance as required by the Customer.

The Customer acknowledges and agrees that TRAILD is under no obligation to provide the Customer with any modifications, or updates in respect of the TRAILD IP, however TRAILD and its Representatives will be working with the Customer to make its experience of the TRAILD Services as pleasant as possible. At its sole discretion and without liability to the Customer, TRAILD may:

(a) add, remove or modify any features or functionality of the TRAILD IP;

(b) impose additional restrictions on access to or usage of the TRAILD IP; or

(c) discontinue the TRAILD IP including the TRAILD Services.

If TRAILD modifies the TRAILD IP, it may require the Customer to use the modified version, which may not be compatible with Customer Applications developed using previous versions. TRAILD will offer the Customer reasonable support in this regard to ensure any modifications to its software are compatible with the Customer Applications.

9            Data

9.1         Data

The Customer is responsible for all Customer Data which it provides TRAILD or inputs into the TRAILD Systems or any other means.  The Customer must ensure that processing of any Customer Data by TRAILD will not place TRAILD in breach of any Laws (including applicable data protection or privacy laws under the Privacy Act or equivalent legislation in any other jurisdiction, or any breaches of the Customer’s or a third party’s Confidential Information).

9.2         Data warranties

The Customer warrants that:

(a) it has obtained all consents authorizations and approvals and made all disclosures necessary to collect, store, disclose, use and/or transfer the Customer Data to TRAILD and the TRAILD Service, including any Personal Information included in the Customer Data;

(b) the Customer warrants that they have no criminal convictions or judgments recorded against them which relates to crimes relating to fraud, unlawful use of personal information or any crime related to the illegal use or processing of personal information in any way.

(c) the Customer Data and its retention and use by TRAILD for the purpose of the TRAILD Services will not violate or infringe upon the rights (including Intellectual Property Rights or any obligations of confidentiality owed to a third party) of any other person;

(d) the Customer Data will not contain a virus or other harmful component;

(e) the Customer Data will comply with any guidelines TRAILD specifies on the TRAILD Website or otherwise communicates to the Customer from time to time. 

9.3         Data loss and damage

The Customer is responsible for and must adopt reasonable measures to limit its exposure to the potential loss, corruption, disclosure, and damage of the Customer Data, including making appropriate arrangements for secure back up or storage of the source material in connection with the Customer Data. 

9.4         Aggregated Data

The Customer acknowledges that TRAILD may use the Customer Data and information derived from the Customer Data to produce a compilation of aggregated and anonymized data and information, which may include similar data and information from other TRAILD customers or users. TRAILD owns all right, title, and interest in and to the aggregated data and information and may use and commercialize the aggregated data and information at its absolute discretion. The Customer agrees that TRAILD will not be in breach of its obligations under clauses 10 and 11 when producing a compilation of aggregated data and information.

TRAILD notes that the use of aggregated data is fundamental to the cross-tenant features of the TRAILD Software, including invoice recognition, fraud prevention and other key services. TRAILD is committed to the security of its customer’s data. In preparing aggregated data and information, TRAILD will use all reasonable endeavors to ensure that the Confidential Information or Personal Information disclosed by the Customer to TRAILD cannot be reasonably ascertained from the aggregated data and information.

9.5         Storage and transfer of Data

TRAILD is a cloud software product that hosts and processes the data of all its customers primarily on Google Cloud Platform (GCP) and primarily in the United States of America, but also utilizes servers in a number of other locations around the world.

The Customer may request in writing that TRAILD host Customer Data entirely within the United States of America, Europe, Australia or another specific jurisdiction, and TRAILD will comply, where it is technically feasible to do so.  Upon request from the Customer, TRAILD can also notify the Customer of the jurisdictions in which Customer Data transfer may occur.

The Customer agrees that TRAILD may, at its sole discretion, disclose, transfer, and store the Customer Data, including Personal Information, to or with TRAILD’s third party service providers and/or affiliates for the purpose of providing the TRAILD Services or any part of it. The Customer consents to TRAILD providing Personal Information to such third-party service providers and affiliates in such jurisdictions, and (prior to submitting any such Customer Data) is solely responsible for ensuring that any disclosure, transfer and/or storage of Customer Data, including Personal Information across a country border under this Agreement complies with applicable data protection laws, including any Privacy Act.

10          Confidential Information

10.1       Obligation of confidentiality

In addition to the other obligations of confidentiality and dealing with Confidential Information that exist in this Agreement, each party must not without the written consent of the other:

(a) use any Confidential Information of the other party, except in performing its obligations under this Agreement;

(b) disclose any Confidential Information of the other party to any person except to its approved employees, officers, directors and other representatives, who need to review the Confidential Information in connection with performance under this Agreement, and then only to those who need to know the same and who agree to be bound by similar obligations of confidentiality. Notwithstanding the foregoing, TRAILD may disclose certain Confidential Information of the Customer to TRAILD’s third party suppliers or the customer’s third-party suppliers, subject to the obligation of confidentiality, as necessary to:

(1) enable the Customer to access and use the TRAILD Systems for the purposes set out in this Agreement;

(2) obtain information specifically requested by the Customer;

(3) perform back-office functions or administrative services, or

(4) as necessary to comply with legal and/or accounting requirements.

10.2       Exclusions

Clause 10.1 will not impose confidentiality obligations upon the recipient of Confidential Information where:

(a) disclosure of Confidential Information is required by law or required to respond to requests by a regulatory or judicial body;

(b) the Confidential Information is in the public domain through no fault or action of the recipient, its employees, or subcontractors; or

(c) the Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.

10.3       Return of Confidential Information

Subject to clause 12.5, each party agrees to destroy or return to the other party, at the other party’s discretion, the Confidential Information of the other party promptly upon a request from the other party to do so.

11          Privacy

11.1       Compliance with Privacy Act

Each party must comply with the Privacy Act and any other applicable laws and mandatory codes dealing with privacy.

11.2       Customer warranties

The Customer warrants to TRAILD that:

(a) any Personal Information that it discloses to TRAILD under this Agreement, including Personal Information transferred to or integrated with the TRAILD Service, has been collected in accordance with the Privacy Act;

(b) the individual to whom the information relates has been made aware of the recipients’ identities, of how to contact the recipients, and of the other matters of which the recipients are required to inform that individual;

(c) TRAILD is authorized to collect, store, disclose, aggregate, and use the Personal Information disclosed to it by the Customer for the purposes of this Agreement and to enable its customers to enjoy the full benefit of the TRAILD Services; and

(d) the Customer is taken to comply with TRAILD’s Privacy Policy with respect to the use, collection and disclosure of any Personal Information of the Customer or an Authorized User and will ensure each Authorized User is presented with a copy of our Privacy Policy at, or as close as possible to, the time of collection of their Personal Information, and consents to the same.

12          Termination and Suspension

12.1       Termination by either party

Either party may immediately suspend or terminate this Agreement by written notice if the other party:

(a) becomes insolvent or enters into liquidation, receivership or other insolvency administration or makes a composition or arrangement with its creditors generally or takes advantage of any statute for the relief of insolvent debtors;

(b) becomes bankrupt, permanently incapacitated or of unsound mind; or

(c) breaches this Agreement and fails to rectify the breach within 14 days of receiving written notice from the other specifying the breach and requiring its rectification.

12.2       Termination for Data breaches

Despite anything else in this Agreement, TRAILD may immediately by notice to the Customer terminate this Agreement in its entirety or cease to provide access to the TRAILD IP or all or any part of the Customer Data or TRAILD Data if:

(a) the Customer has collected, disclosed, transmitted, modified or used any TRAILD Data in breach of this Agreement, the Privacy Act or any other applicable laws and codes dealing with privacy;

(b) the Customer has collected, disclosed, transmitted, modified, or used any TRAILD Data in any manner which is not contemplated by this Agreement or approved by TRAILD from time to time; or

(c) TRAILD or the Customer receives from any Authorized User or TRAILD Customer any complaint or claim regarding the use or misuse of any Customer Data or TRAILD Data or that such data has been collected, disclosed, transmitted, modified, or used in breach of the Privacy Act or any other applicable laws and codes dealing with privacy.   

12.3       Termination for convenience

Either party may terminate this Agreement at any time by 90 days written notice to the other.

12.4       Obligation on termination

On the expiration or termination of this Agreement for any reason:

(a) TRAILD may immediately remove the Customer Applications and the Customer Data from the TRAILD Systems and cease to provide access to the TRAILD IP;

(b) the Customer must immediately cease accessing and using the TRAILD IP;

(c) subject to clause 12.5, each party must deliver to the other party or erase or destroy all copies of materials containing the other party’s Confidential Information; and

(d) all fees and other amounts owing or recoverable pursuant to the terms of this Agreement (including interest charged pursuant to clause 7.5) become immediately due and payable.

12.5       What TRAILD Delivers Up

Notwithstanding the foregoing, the Customer acknowledges

that the information or materials that comprise the Confidential

Information requested to be, under clause 12.4(c):

(a) returned to the Customer by TRAILD upon termination or expiry of this Agreement; is limited to the TRAILD Return Materials; and

(b) deleted upon the expiry or termination of this Agreement; is limited to the TRAILD Deleted Materials.

For the purposes of this Agreement, the:

TRAILD Return Materials includes and is limited to any TRAILD Data previously provided to the Customer in the course of the TRAILD Services or any Customer Data that is still held on the TRAILD Systems on the relevant termination or expiry date

TRAILD Deleted Materials includes any TRAILD Return Materials save for any Data of whatever nature that TRAILD is lawfully entitled to retain at the end of this Agreement, including

Aggregated Data under clause 9.4.

12.6       Other remedies

Termination of this Agreement by a party is without prejudice to its other rights in respect of this Agreement.

12.7       Survival

Clauses 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16 and any other clauses which are expressly or by implication intended to operate after termination survive termination and expiry of this Agreement.

13          Intellectual property

13.1       TRAILD IP

All right, title and interest (including Intellectual Property Rights) in or in connection with the TRAILD Data and the TRAILD IP (including their underlying technology, software, programs, as well as all their respective modifications, developments, updates, enhancements and derivative works) are and remain owned by TRAILD or its licensors. Nothing in this Agreement assigns to the Customer any right, title or interest (including Intellectual Property Rights) in or in connection with the TRAILD Data or the TRAILD IP. The Customer must not claim any right or title to own or use the Intellectual Property Rights in the TRAILD Data or the TRAILD IP, except to the extent such use is permitted under this Agreement. The Customer must not dispute or challenge the entitlement of TRAILD (or its licensors) to own, use or license the Intellectual Property Rights in the TRAILD Data and the TRAILD IP or join any third parties to challenge or contest the validity of those Intellectual Property Rights. The Customer agrees to notify TRAILD promptly of any infringement, or suspected or threatened infringement, of the Intellectual Property Rights comprised in or in connection with the TRAILD Data or the TRAILD IP and reasonably cooperate with TRAILD in relation to such infringement.  TRAILD may impose limitations or restrictions on usage of the TRAILD IP or TRAILD Services by the Customer at its discretion from time to time.

13.2       Customer IP

The Customer retains ownership of Intellectual Property Rights in the Customer IP, subject to TRAILD’s rights to access and use the Customer IP for all purposes contemplated by this Agreement, including the license granted pursuant to clause 6.2.

13.3       Ownership of integration IP

TRAILD will own all Intellectual Property Rights in any modifications to the TRAILD System or TRAILD Services made by either party in the course of providing the TRAILD Services under this Agreement and the Customer hereby assigns to TRAILD all Intellectual Property Rights in such modifications which it would otherwise have had. 

14          Customer Representations

The Customer is solely responsible for its access to and use of the TRAILD IP, the Customer Applications and any data or content it uses with the TRAILD IP. The Customer represents and warrants that:

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

(b) it has relied on its own skill, judgment and enquiries in deciding to access and use the TRAILD IP and enter into this Agreement and has not relied on any representation, warranty, guarantee or other provision made by or on behalf of TRAILD which is not expressly stated in this Agreement; and

(c) it will not interfere with TRAILD’s business practices, the way in which it offers the TRAILD Services or the TRAILD IP or any third-party products or networks used with the TRAILD System.

15          Warranties and liability

15.1       Exclusion of warranties

While TRAILD will ensure the TRAILD Services are performed in accordance with the requirements of this Agreement, to the maximum extent permitted by law:

(a) the TRAILD Systems are provided “as is” and TRAILD and its licensors expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory.

(b) The TRAILD Systems and TRAILD Services are not intended to provide professional accounting, tax or other advice;

(c) TRAILD expressly disclaims any warranty that use of the TRAILD Services will ensure the Customer’s compliance with any accounting standards or legal or regulatory obligations or that the results of the Trailed Service will be accurate or sufficient for your purposes;

(d) there is no warranty that the TRAILD Systems will be error free, that access will be continuous or uninterrupted, that any information provided or used with the TRAILD Service will be secure, accurate, complete or timely, or that any Customer Data will be preserved or maintained without loss;

(e) TRAILD shall not be liable for any failure of the TRAILD Services or TRAILD Systems or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of TRAILD, including data communication delays, software errors, or inability to obtain products or services. The Customer may have other statutory rights; however, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law;

(f) TRAILD Services are to be used to support the Customer to interpret information that the Customer makes available to TRAILD, including the Documents. Any risk ratings or suggestion tools provided by TRAILD as part of the TRAILD Services are based on the quality and accuracy of the information provided by the Customer, are provided on a best endeavors basis, and shall not be solely relied upon in whole or in part to assess or make decisions about any subject matter of any kind, including those related to the adequacy or otherwise of the Documents; and

(g) the TRAILD Systems may be subject to significant and unexpected change as a result of a range of factors including as a result of any information or Customer Data transmitted by the Customer to TRAILD’s systems, general commercial or industrial factors or other factors outside of TRAILD’s control.

To the maximum extent permitted by law, TRAILD provides no warranties in respect of the TRAILD Services, TRAILD Systems and TRAILD IP. Except as otherwise provided in this Agreement, all warranties, terms, guarantees and conditions (Conditions) relating in any way to the TRAILD Service, TRAILD System and TRAILD IP or subject matter of this Agreement, other than non-excludable Conditions implied or made applicable by statute.

Nothing in this Agreement is or should be interpreted as an attempt to modify, limit or exclude Conditions which are imposed by statute and which cannot be modified, limited or excluded.

15.2       Non-excludable warranties

Where a statute that applies to this Agreement implies or makes applicable any Condition and that statute prohibits provisions in a contract excluding or modifying the application of or liability under any of them (each a Non-Excludable Term), that Non-Excludable Term is included in this Agreement. However, TRAILD’s liability for any breach of the Non-Excludable Term is, if permitted by the statute, limited at the option of TRAILD, to the replacement of the good or resupply of the service or to payment of the cost of replacement or resupply.

15.3       No liability

To the extent legally permitted and despite anything else in this Agreement except clause 15.2, TRAILD is not liable for:

(a) indirect, special, incidental or consequential loss or damages; or

(b) loss or damage resulting from business disruption, loss of goodwill, lost profits, lost savings, lost revenue, loss of or damage to systems or data, (whether direct or indirect),

whether in an action for contract or tort, including negligence or otherwise, arising in any way out of this Agreement, the relationship created by it, any act or omission of TRAILD or the Customer’s use of or reliance on the TRAILD IP, even if TRAILD has been advised of the possibility of such loss or damage.

15.4       Liability limitation

To the extent legally permitted and despite anything else in this Agreement except clauses 15.2 and 15.3, TRAILD’s total aggregate liability for losses, costs, claims and damages under this Agreement, whether in an action for contract or tort, including negligence, or otherwise, arising in any way out of this Agreement, the relationship created by it, any act or omission of TRAILD or the Customer’s use of or reliance on the TRAILD System, TRAILD Services and TRAILD IP, is limited to an amount equal to the Fees received by TRAILD from the Customer in the 12 months immediately preceding the date of the first event which gives rise to a claim.

The Customer agrees that the forgoing limitations are essential elements of this Agreement and a reasonable allocation of risk between the parties.

15.5       Indemnity

TRAILD is not able to control in advance or supervise the information uploaded by the Customer into the TRAILD system. The Customer indemnifies TRAILD and its Representatives, licensees, and customers from and against all Loss (including legal costs on an indemnity basis) incurred or suffered by all or any of them directly or indirectly as a result of one or more of the following:

(a) the access, processing, use or disclosure of the Customer Data by TRAILD, when conducted in accordance with this Agreement (including, without limitation, any claims by a third party against either TRAILD or the Customer with respect to such access, processing, use or disclosure by TRAILD of such data);

(b) the Customer’s access to or use of the TRAILD Systems;

(c) any incorrect or incomplete Customer Data uploaded or transmitted to the TRAILD Systems which impacts TRAILD’s ability to properly carry out the TRAILD Services;

(d) a breach of this Agreement or any warranty by the Customer; and

(e) the negligence, acts or omissions of the Customer or any of its Representatives.

TRAILD may at its own expense participate in the defense and settlement of any claim, and the Customer may not settle a claim without TRAILD’s prior written consent.

16          General

16.1       Notices

Any notice or other communication to or by a party to this Agreement:

(a) may be given by personal service, post, email or facsimile;

(b) must be in writing addressed to the person at the postal address, email address or fax number specified in this Agreement or to any other address last notified by the party to the sender by notice given in accordance with this clause;

(c) is deemed to be given by the sender and received by the addressee:

(1) if delivered in person, when delivered to the addressee;

(2) if posted, 2 business days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; or

(3) if sent by email or facsimile transmission, on the date shown on the email delivery receipt or the transmission report by the machine from which the facsimile was sent, as applicable,

but if the delivery or receipt is on a day which is not a business day or is after 4.00 pm (addressee’s time) it is deemed to have been received at 9.00 am on the next business day.

16.2       Entire agreement and variation

This Agreement contains the entire understanding and agreement of the parties concerning its subject matter and supersedes all previous oral or written representations or statements by either party.  It may only be varied by a written document signed by each party.

16.3       Delay

TRAILD is not responsible or liable for any delay in or failure to perform any obligation under this Agreement arising directly or indirectly from causes or events beyond its reasonable control or which is caused or contributed to by the Customer’s acts or omissions.

16.4       Waiver

If a party fails to or delays in exercising any right or power under this Agreement, this will not be a waiver of that right or power.  Any failure or delay will not prevent a party from exercising that right or power in the future.

16.5       Severability

If any of the provisions of this Agreement are invalid, the enforceability of the remaining provisions shall not be affected.

16.6       Further assurances

Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers all deeds, documents, instruments and acts reasonably required of it or them by notice from another party effectively to carry out and give full effect to this Agreement and the rights and obligations of the parties under it. 

16.7       Counterparts

This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.  Delivery of an executed counterpart of this Agreement by PDF (portable document format file) will be effective as delivery of a manually executed counterpart of this Agreement. 

16.8       Assignment and sub-contracting

(a) This Agreement may not be assigned, sublicensed or otherwise transferred by the Customer, whether by operation of law or otherwise, without TRAILD’s prior written consent, such consent not to be unreasonably withheld or delayed.

(b) TRAILD may, at any time, novate, assign or transfer part or all of its rights and obligations under this Agreement to any third party and to the extent required the Customer consents to the novation, assignment or transfer. The Customer agrees to enter into a novation, assignment or transfer agreement on terms specified by TRAILD.

(c) Only to the extent necessary to render the TRAILD Services, TRAILD may subcontract some or all of its obligations under this Agreement to one or more third parties, however, TRAILD will remain responsible for compliance with all of its obligations and is responsible for compliance of this Agreement by each third-party subcontractor as if that third party was a party to this Agreement. 

16.9       Governing law

The construction, validity and performance of this Agreement are governed by:

(a) the laws of the State of Delaware, if the Customer’s primary business address is in the United States of America;

(b) the laws of the Province of Ontario and the laws of Canada applicable therein, if the Customer’s primary business address is in Canada;

(c) the laws of England and Wales, if the Customer’s primary business address is in the United Kingdom;

(d) the laws of Ireland, if the Customer’s primary business address is in Europe;

(e) the laws of Victoria, Australia, if the Customer’s primary business address is in Australia;

(f) the laws of New Zealand, if the Customer’s primary business address is in New Zealand;

(g) the laws of South Africa, if the Customer’s primary business address is in South Africa; or

(h) the laws of Victoria, Australia, if the Customer’s primary business address is in any country not specified elsewhere in this clause.