BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE TRAILD SYSTEMS, TRAILD SERVICES OR TRAILD PAY SERVICES, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE PERSON ACCEPTING THIS AGREEMENT, IF DOING SO ON BEHALF OF A COMPANY (CUSTOMER), REPRESENTS THAT THE PERSON HAS THE AUTHORITY TO ACCEPT AND BIND THE CUSTOMER TO THESE TERMS. IF THE PERSON ACCEPTING THE AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR IF THE PERSON DOES NOT AGREE TO THESE TERMS, THE PERSON MUST NOT ACCEPT THESE TERMS AND THE PERSON OR CUSTOMER MUST NOT ACCESS OR USE THE TRAILD SERVICES, TRAILD PAY SERVICES OR ACCESS THE TRAILD SYSTEMS.
Details
TRAILD GROUP
TRAILD PTY LTD (ACN 627 799 982)
TRAILD PAY PTY LTD (ACN 684 011 407)
Each with registered address 35 Market St, South Melbourne, VIC 3205, Australia
Email: legal@traildsoftware.com
Customer
The Entity or Person placing an order or otherwise accessing the TRAILD Systems and receiving the TRAILD Services and/or the TRAILD Pay Services.
Agreement
A. TRAILD carries on the business of supplying the TRAILD Services to its customers using the TRAILD Systems.
B. TRAILD Pay carries on the business of supplying the TRAILD Pay Services to its customers in support of the TRAILD Services.
C. The Customer wishes to purchase the TRAILD Services and/or the TRAILD Pay Services.
D. TRAILD agrees to supply the TRAILD Services and/or TRAILD Pay agrees to supply the TRAILD Pay Services to the Customer on the terms and conditions of this Agreement.
1 Definitions and interpretation
In this Agreement:
Additional Services has the meaning given in clause 7.1(a).
Agreement means this Agreement as constituted by the Terms and any other annexure, attachments and schedules, including the DPA, and any subsequent written amendments.
Authorized Form means the electronic information sheet circulated by TRAILD Group 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 Group from time to time in order to provide the TRAILD Services and TRAILD Pay Services.
Authorized Users means the named individuals authorized by the Customer to access and use the TRAILD Services and TRAILD Pay Services as notified to TRAILD Group by the Customer using the Authorized Form, being the primary point of contact between the Customer and TRAILD Group in relation to all matters concerning the TRAILD Services, TRAILD Pay Services, applicable Additional 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.
Consumer Protection Legislation means any applicable consumer protection laws and regulations governing the supply of the TRAILD Services, TRAILD Pay Services or TRAILD Systems to the Customer.
CPI means, at TRAILD Group’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 Group (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 Group to provide the TRAILD Services or TRAILD Pay Services in good faith. Documents forms part of the Customer Data.
DPA means TRAILD Group’s data processing agreement available at https://traildsoftware.com/data-processing-agreement/.
Eligible Services means Payment Execution made by virtual credit card or such other eligible payment processing mechanism as determined by TRAILD Pay.
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.
Incentive Plan has the meaning given in clause 8.4.
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, 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 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.
Payment Execution has the meaning given in clause 7.1(d).
Payment Processing Fee Schedule means the fee schedule for payment processing and transaction facilitation services provided by TRAILD Pay to Customer, as amended from time to time in accordance with clause 8.3.
Payment Processing Fees means the fees payable by the Customer to TRAILD Pay for the facilitation of Payment Execution and for other chargeable services provided by TRAILD Pay to the Customer from time to time, as set out in the Payment Processing Fee Schedule, and any expenditures, additional service fees, special fees, international and foreign transaction fees, and costs and charges incurred for or with respect to payment processing and transaction services for Customer.
Personal Information has the meaning given to that expression in the Privacy Act.
Privacy Act means the applicable 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 Group notifies it is compliant with in writing.
Privacy Policy means TRAILD Group’s privacy policy available at https://traildsoftware.com/privacy-policy/.
Provider Customer Data has the meaning given in clause 7.2(a).
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 Group 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, including Sales Tax, Goods and Services Tax and Value Added Tax.
Service Provider has the meaning given in clause 7.1(a).
Service Provider Agreement has the meaning given in clause 7.1(a).
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 go-live date for the TRAILD Services, 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 17 of this document.
TRAILD means TRAILD PTY LTD (ACN 627 799 982) with registered address 35 Market St, South Melbourne, VIC 3205, Australia.
TRAILD Data means all information, content and data disclosed or provided to the Customer by TRAILD Group or accessed, obtained or retrieved by the Customer from TRAILD Group during the provision of the TRAILD Services, TRAILD Pay Services or via the TRAILD Systems, including through the integration of Customer Applications with the TRAILD Systems, but does not include Customer Data.
TRAILD Group means TRAILD and TRAILD Pay.
TRAILD IP means all Intellectual Property Rights in the TRAILD Systems, TRAILD Services, TRAILD Pay Services and TRAILD Data.
TRAILD Pay means TRAILD PAY PTY LTD (ACN 684 011 407) with registered address 35 Market St, South Melbourne, VIC 3205, Australia.
TRAILD Pay Services means the transmission of Customer’s payment processing and transaction information to Service Providers and facilitation of relevant Additional Services by or on behalf of TRAILD Pay, including any updates, variations, modifications and enhancements to such services from time to time but does not include any Additional Services.
TRAILD Representative means the TRAILD Group 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 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 but does not include the TRAILD Pay Services or any Additional Services.
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 TRAILD Pay 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 ap.traildtech.com or any other relevant websites owned and operated by TRAILD Group.
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 and/or TRAILD Pay Services;
(d) keep the Authorized Users under review and provide an up-to-date list of Authorized Users to TRAILD Group 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 Systems 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.
TRAILD Group’s relationship with the Customer is non-exclusive and TRAILD Group 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 each 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) facilitating TRAILD Pay to provide the Customer with the TRAILD Pay Services; and
(c) 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 Group 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).
4.4 Fair Use
Customer’s use of the TRAILD Services, TRAILD Pay Services, and TRAILD Systems must be consistent with typical operational needs and intended use. Excessive, abusive or fraudulent usage that disrupts system performance, circumvents intended functionality, or imposes undue costs on TRAILD Group is prohibited. If usage exceeds reasonable limits, TRAILD Group may limit or suspend access to the TRAILD Services, TRAILD Pay Services or TRAILD Systems without prior notice.
5 General Customer Acknowledgements
The Customer represents, warrants and covenants:
(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, TRAILD PAY 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 Group by the Customer as requested by TRAILD Group from time to time, including (without limitation) the Documents;
(c) that it will not use the TRAILD Services or TRAILD Pay 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 Group under this Agreement;
(f) that it will comply with TRAILD Group’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, TRAILD Pay 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, TRAILD Pay 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, TRAILD Services or TRAILD Pay 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, TRAILD Pay Services and TRAILD Systems, including to integrate the Customer Applications with the TRAILD Systems including a modern web browser and a TRAILD Group supported enterprise resource planning system or accounting system;
(n) that it shall use, as applicable, TRAILD Systems only in relation to the TRAILD Services and TRAILD Pay Services during the term of receiving such services and in accordance with any applicable terms of use issued or made available by TRAILD Group 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 Group will not be responsible for the inaccessibility of the TRAILD Services and/or TRAILD Pay 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 and/or TRAILD Pay 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/or TRAILD Pay 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
(a) The Customer acknowledges and agrees that:
(1) 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, TRAILD Pay Services and otherwise to operate, improve and maintain the TRAILD Systems, the Customer grants TRAILD Group a worldwide, transferable, non-exclusive, royalty-free right to use, copy, store, transmit, distribute, and modify any Customer Data;
(2) TRAILD Group 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;
(3) TRAILD Group will endeavor to ensure continued access to the Customer Data, but expressly disclaims all storage obligations with respect to any Customer Data following termination of this Agreement;
(4) in the event of termination of the TRAILD Services or TRAILD Pay Services in accordance with this Agreement, TRAILD Group will provide reasonable assistance to the Customer to enable the Customer to export any Customer Data that is available and uniquely identifiable, if the Customer makes a request for assistance within 14 days of termination; and
(5) the Customer is solely responsible for maintaining backups of Customer Data on its own systems.
7 Additional Services
7.1 Availability of Additional Services
(a) Through the TRAILD Services, TRAILD Pay Services or TRAILD Systems, the Customer may have the ability to access or use products, services, software or data (Additional Services) that are provided by a third-party unaffiliated with TRAILD Group (Service Provider). Additional Services are provided under separate terms between the Customer and the Service Provider (the Service Provider Agreement).
(b) The Customer acknowledges that TRAILD Group is not a party to the Service Provider Agreement and TRAILD Group makes no representations or warranties and assumes no responsibility or liability whatsoever for Additional Services, including the operation, accuracy and availability of Additional Services and any termination or suspension of the Additional Services by the Service Provider. The Customer is solely responsible and liable for its use of an Additional Service, including any fees, expenses or charges owed by the Customer pursuant to the Service Provider Agreement or otherwise owed by the Customer to TRAILD Group under this Agreement for Customer’s use of the Additional Service. The Customer shall comply with all Service Provider Agreements and Laws applicable to its use of any Additional Service. TRAILD Group is not liable or responsible for any TRAILD Services, TRAILD Pay Services nor any features or functions of the TRAILD Services or TRAILD Pay Services that are impacted by any error, suspension, downtime, failure or termination of the Additional Service.
(c) In the event that the Customer elects to utilize any functionality in the TRAILD Services or TRAILD Pay Services that enables the Customer to disclose to, transfer or share Provider Customer Data with a Service Provider or Additional Services that may be utilized by the Service Provider to enable, initiate or execute a payment transaction or other transaction by or on behalf of the Customer, the Customer agrees that such Provider Customer Data is being provided by the Customer to the Service Provider and such activities will be governed by the Service Provider Agreement between the Customer and such Service Provider.
(d) To the extent an Additional Service: (i) involves the payment or transfer of funds from the Customer to a third-party or other payment transactions involving the Customer (Payment Execution), the Customer agrees that TRAILD Group assumes no responsibility or liability for such Payment Execution, including any failures or inaccuracies with respect to such Payment Execution; or (ii) includes functionality enabling the Customer to authorize the Service Provider to take actions on behalf of the Customer under the Service Provider Agreement (including Payment Execution), TRAILD Group makes no representations or warranties and assumes no responsibility whatsoever for the actions taken (or not taken) by the Service Provider.
(e) To the extent Customer has entered into Service Provider Agreements with more than one Service Provider for the provision of Additional Services, including Payment Execution, TRAILD Group shall in its sole discretion determine which Service Provider shall be used for any Additional Services.
7.2 TRAILD Rights
(a) The Customer agrees that (i) TRAILD Group has the right to share any Customer Data (including payment transaction data, authentications, authorizations, approvals, authentication credentials, or other information (including Personal Information)) (Provider Customer Data) with the Service Provider on behalf of the Customer to the extent an Additional Service uses TRAILD, TRAILD Pay, the TRAILD Services or the TRAILD Pay Services to access, collect, use or process Provider Customer Data in order for Customer to access or utilize the Additional Service, (ii) such sharing will not constitute a breach by TRAILD Group or its Representatives of any provision of this Agreement, including restrictions and prohibitions on the sharing of the Customer’s Confidential Information or Customer Data, and (iii) the Customer will provide any information requested by Service Provider, or TRAILD Group on its behalf, in order for Service Provider to provide the Additional Service to Customer. The Customer consents to TRAILD Group sharing such Provider Customer Data with the Service Provider on behalf of the Customer and (prior to submitting any such Customer Data) is solely responsible for ensuring that any disclosure, transfer and/or storage of Provider Customer Data across a country border under this Agreement complies with applicable data protection laws, including any Privacy Act. The Customer agrees that the Service Provider’s rights with respect to any Provider Customer Data is governed by the applicable Service Provider Agreement, and TRAILD Group has no control over Service Provider’s use of Provider Customer Data. The Customer represents, warrants and covenants that any Provider Customer Data that it provides to TRAILD Group is complete, accurate, and current.
(b) In the event that a Service Provider requires materials, documentation or information from the Customer, the Customer shall cooperate with TRAILD Group to facilitate the transfer of such materials, documentation or information to such Service Provider on the Customer’s behalf.
(c) TRAILD Group reserves the right to suspend or terminate access or use privileges to any or all of the TRAILD Services and TRAILD Pay Services for actual or suspected violation of this Agreement, any other applicable terms and conditions of use or any access credentials to prevent or mitigate fraud, unauthorized use, damage, security vulnerability, malware or intellectual property infringement risks to TRAILD Group or its infrastructure, or to comply with applicable laws. TRAILD Group reserves the right to cooperate in its sole discretion with law enforcement activities regarding the use of TRAILD Services, TRAILD Pay Services or any of their components, and any payment solutions, functionality or transactions accessible or enabled through them.
7.3 Indemnification
Customer will defend, indemnify and hold harmless TRAILD Group 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 Customer’s or its Representative’s (a) use of an Additional Service, (b) breach of a Service Provider Agreement (c) any claims by a third-party (including any Service Provider) relating to any fines, fees, interest, charges or other costs arising from Customer’s use of the Additional Services or from any Payment Executions or (d) violation of any Law in connection with its use of an Additional Service.
8 Fees
8.1 Fees
The Customer agrees to pay:
(a) TRAILD the Fees for any chargeable services (including the TRAILD Services but excluding any Payment Processing Fees) provided by TRAILD from time to time, without deduction or set-off; and
(b) TRAILD Pay the Payment Processing Fees for any chargeable services (including the facilitation of Payment Execution by way of the TRAILD Pay Services) provided by TRAILD Pay from time to time, without deduction or set-off (other than as expressly permitted under any applicable Incentive Plan).
8.2 Payment of Fees
The Customer must pay TRAILD the Fees and TRAILD Pay the Payment Processing Fees within 30 days of the date provided on the relevant tax invoice. Billing will commence from the Start Date unless otherwise agreed in writing.
8.3 Variation of Fees
(a) 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 written notice to the Customer. Fee changes for exceeding a usage tier shall be effective from the Customer’s next billing cycle following such written notice. 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.
(b) Payment Processing Fees as set forth in the Payment Processing Fee Schedule may be amended by 30 days written notice from TRAILD Pay to Customer. The Customer’s continued use of the TRAILD Pay Services facilitated through the TRAILD Systems after the renewal date constitutes acceptance of the adjusted Fees by the Customer. If the Customer does not accept the amended Payment Processing Fees, Customer may terminate this Agreement upon written notice to TRAILD Pay at any time within such 30-day notice period.
(c) Upon each anniversary of the Start Date of this Agreement, TRAILD Group may increase Fees and/or Payment Processing Fees by CPI (at TRAILD Group’s discretion) without prior notice.
8.4 Incentive Plan
Customer may be eligible to participate in an incentive program in relation to its Payment Executions (“Incentive Plan”). Eligibility to participate in the Incentive Plan will be determined by TRAILD Pay in its absolute discretion. As a precondition to eligibility, Customer must (a) receive Eligible Services; (b) be current on all of its accounts with TRAILD Group and their affiliates; and (c) be in compliance with all terms of this Agreement. The terms and conditions of such Incentive Plan will be set out therein.
8.5 Tax
All amounts payable by the Customer to TRAILD Group for the TRAILD Services and/or TRAILD Pay Services shall be exclusive of any Sales Tax or other governmental taxes or levies payable in respect of the Fees or the Payment Processing Fees and Customer shall, in addition to the Fees and Payment Processing Fees, pay TRAILD or TRAILD Pay (as applicable) all amounts of Sales Tax or other governmental taxes or levies imposed on (a) TRAILD with respect to the Fees; and (b) TRAILD Pay with respect to the Payment Processing Fees, but in both cases excluding TRAILD Group’s own income tax, and agrees to indemnify TRAILD Group in respect of any such imposition resulting from any failure by TRAILD Group to collect, or by the Customer to make payment of any amount properly chargeable to it on account.
8.6 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 Secure Overnight Financing Rate (SOFR), where applicable, on any outstanding amount from the due date of payment until the outstanding amount is paid in full.
9 Disclaimer
9.1 TRAILD IP Disclaimer
The Customer may have rights under Consumer Protection Legislation. Subject to clause 16.2, nothing in this Agreement is intended to exclude or limit, or has the effect of excluding or limiting, the operation of the applicable Consumer Protection Legislation or any right the Customer may have under Consumer Protection Legislation.
Subject to the exclusion in clause 16.2, and to the full extent permitted by applicable law:
(a) TRAILD Group makes no express or implied representations, warranties or guarantees in respect of the TRAILD IP.
(b) TRAILD Group makes no representation, warranty or guarantee that:
(1) the TRAILD IP including the TRAILD Services and TRAILD Pay Services will be available at all times;
(2) the TRAILD IP or the access and use of the TRAILD IP including the TRAILD Services and TRAILD Pay Services by the Customer, will be error-free, defect-free, secure, uninterrupted or compatible with the Customer’s equipment or software configurations;
(3) the TRAILD IP including the TRAILD Services and TRAILD Pay Services will be fit for the Customer’s or any Authorized User’s purpose; or
(4) TRAILD will correct any error or defect in the TRAILD IP including the TRAILD Services or TRAILD Pay Services.
9.2 Support and Modifications
(a) TRAILD Group must provide reasonable remote support by suitable TRAILD Group personnel to the Customer to facilitate the Customer’s successful use of the TRAILD Services, TRAILD Pay Services and TRAILD Systems. Typical support is less than 2 hours per month, but TRAILD Group shall provide all reasonable additional assistance as required by the Customer.
(b) The Customer acknowledges and agrees that TRAILD Group is under no obligation to provide the Customer with any modifications, or updates in respect of the TRAILD IP, however TRAILD Group and its Representatives will be working with the Customer to make its experience of the TRAILD Services and TRAILD Pay Services as pleasant as possible. At its sole discretion and without liability to the Customer, TRAILD Group may:
(1) add, remove or modify any features or functionality of the TRAILD IP;
(2) impose additional restrictions on access to or usage of the TRAILD IP; or
(3) discontinue the TRAILD IP including the TRAILD Services or TRAILD Pay Services.
(c) If TRAILD Group modifies the TRAILD IP, the modified version may not be compatible with Customer Applications developed using previous versions of the TRAILD IP. TRAILD will offer the Customer reasonable support to ensure any modifications to its software are compatible with the Customer Applications. If the modifications have a material detrimental effect on the Customer’s use of the TRAILD Services or TRAILD Systems, the Customer may terminate this agreement by written notice to TRAILD without penalty at any time within thirty (30) days of release of the modifications.
10.1 Data
The Customer is responsible for all Customer Data which it provides TRAILD Group or inputs into the TRAILD Systems or any other means. The Customer must ensure that processing of any Customer Data by TRAILD Group will not place TRAILD Group 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).
10.2 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 Group 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 Group for the purpose of the TRAILD Services and TRAILD Pay 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; and
(e) the Customer Data will comply with any guidelines TRAILD Group specifies on the TRAILD Website or otherwise communicates to the Customer from time to time.
10.3 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.
10.4 Aggregated Data
(a) The Customer acknowledges and agrees 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 11 and 12 when producing a compilation of aggregated data and information.
(b) TRAILD notes that the use of aggregated data is fundamental to the cross-tenant features of the TRAILD Systems, including invoice recognition, fraud prevention and other key services. TRAILD is committed to the security of its customers’ 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.
10.5 Storage and transfer of Data
(a) The TRAILD Systems, TRAILD Services and TRAILD Pay Services are a cloud software offering that hosts and processes the data of all TRAILD Group 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.
(b) The Customer may request in writing that TRAILD Group host Customer Data entirely within the United States of America, Europe, Australia or another specific jurisdiction, and TRAILD Group will comply, where it is technically feasible to do so. Upon request from the Customer, TRAILD Group can also notify the Customer of the jurisdictions in which Customer Data transfer may occur.
(c) The Customer agrees that TRAILD Group may, at its sole discretion, disclose, transfer, and store the Customer Data, including Personal Information, to or with TRAILD’s Service Providers and/or affiliates for the purpose of providing the TRAILD Services, TRAILD Pay Services or any part thereof. The Customer consents to TRAILD Group providing Personal Information to such 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.
11 Confidential Information
11.1 Obligation of confidentiality
In addition to the other obligations of confidentiality and dealing with Confidential Information that exist in this Agreement, each party must keep Confidential Information confidential and secret, and 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 Group may disclose certain Confidential Information of the Customer to TRAILD Group’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.
11.2 Exclusions
Clause 11.1 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.
11.3 Return of Confidential Information
Subject to clause 13.5, 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.
12.1 Compliance with Privacy Act
Each party must comply with the Privacy Act and any other applicable laws and mandatory codes dealing with privacy.
12.2 DPA
The DPA is hereby incorporated into this Agreement by reference. The subject matter, nature, purpose and duration of processing, as well as the types of Personal Information collected and categories of data subjects, are set forth in the DPA. Customer agrees that TRAILD Group may collect, use, retain and disclose Personal Information as described in this Agreement and the DPA.
12.3 Customer warranties
The Customer warrants to TRAILD Group that:
(a) any Personal Information that it discloses to TRAILD Group under this Agreement, including Personal Information transferred to or integrated with the TRAILD Systems, TRAILD Services or TRAILD Pay Services, 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 Group 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 TRAILD Pay Services; and
(d) the Customer is taken to comply with TRAILD Group’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.
13 Termination and Suspension
13.1 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.
13.2 Termination for Data breaches
Despite anything else in this Agreement, TRAILD Group 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 Group from time to time; or
(c) TRAILD Group or the Customer receives from any Authorized User or third-party any complaint or claim regarding the use or misuse of any Customer Data or TRAILD Data by Customer or its Authorized User(s) 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.
13.3 Termination for convenience
Either party may terminate this Agreement at any time by 30 days written notice to the other.
13.4 Obligation on termination
On the expiration or termination of this Agreement for any reason:
(a) TRAILD Group 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 13.5, 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 8.6) become immediately due and payable.
13.5 What TRAILD Delivers Up
Notwithstanding the foregoing, the Customer acknowledges and agrees that the information or materials that comprise the Confidential Information requested to be, under clause 13.4(c):
(a) returned to the Customer by TRAILD Group 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 TRAILD Pay 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 Group is lawfully entitled to retain at the end of this Agreement, including Aggregated Data under clause 10.4.
Termination of this Agreement by a party is without prejudice to its other rights in respect of this Agreement.
Clauses 5, 6, 7.1(b), 7.1(c), 7.1(d), 7.2(a), , 7.3 8, 9, 10, 11, 12, 13, 14, 16 and 17 and any other clauses which are expressly or by implication intended to operate after termination survive termination and expiry of this Agreement.
14 Intellectual property
14.1 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 Group 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 Group (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 Group 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 Group may impose limitations or restrictions on usage of the TRAILD IP, TRAILD Services or TRAILD Pay Services by the Customer at its reasonable discretion from time to time.
14.2 Customer IP
The Customer retains ownership of Intellectual Property Rights in the Customer IP, subject to TRAILD Group’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.
14.3 Ownership of integration IP
(a) TRAILD will own all Intellectual Property Rights in any modifications to the TRAILD Systems 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.
(b) TRAILD Pay will own all Intellectual Property Rights in any modifications to the TRAILD Pay Services made by either party in the course of providing the TRAILD Pay Services under this Agreement and the Customer hereby assigns to TRAILD Pay all Intellectual Property Rights in such modifications which it would otherwise have had.
15 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 Group which is not expressly stated in this Agreement; and
(c) it will not interfere with TRAILD Group’s business practices, the way in which it offers the TRAILD Services, TRAILD Pay Services or the TRAILD IP or any third-party products or networks used with the TRAILD System.
16 Warranties and liability
16.1 Exclusion of warranties
While TRAILD shall ensure the TRAILD Services and TRAILD Pay shall ensure the TRAILD Pay Services are performed in accordance with the requirements of this Agreement, subject to the exclusion in clause 16.2 and to the maximum extent permitted by law:
(a) the TRAILD Systems are provided “as is” and TRAILD Group 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, TRAILD Services and TRAILD Pay Services are not intended to provide professional accounting, tax or other advice;
(c) TRAILD Group expressly disclaims any warranty that use of the TRAILD Services or TRAILD Pay Services will ensure the Customer’s compliance with any accounting standards or legal or regulatory obligations or that the results of the TRAILD Services or TRAILD Pay Services 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 or TRAILD Pay Service will be secure, accurate, complete or timely, or that any Customer Data will be preserved or maintained without loss;
(e) TRAILD Group shall not be liable for any failure of the TRAILD Services, TRAILD Pay 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 Group, 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 Group’s systems, general commercial or industrial factors or other factors outside of TRAILD Group’s control.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRAILD GROUP PROVIDES NO WARRANTIES IN RESPECT OF THE TRAILD SERVICES, TRAILD PAY SERVICES, TRAILD SYSTEMS, TRAILD IP OR ADDITIONAL SERVICES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TRAILD GROUP EXPRESSLY DISCLAIMS ALL WARRANTIES, TERMS, GUARANTEES AND CONDITIONS (CONDITIONS) RELATING IN ANY WAY TO THE TRAILD SERVICES, TRAILD PAY SERVICES, TRAILD SYSTEMS AND TRAILD IP OR SUBJECT MATTER OF THIS AGREEMENT, OTHER THAN NON-EXCLUDABLE CONDITIONS IMPLIED OR MADE APPLICABLE BY STATUTE. TRAILD GROUP EXPRESSLY DISCLAIMS ALL WARRANTIES, TERMS, GUARANTEES AND CONDITIONS RELATING IN ANY WAY TO THE ADDITIONAL SERVICES.
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.
16.2 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 Group’s liability for any breach of the Non-Excludable Term is, to the full extent permitted by the applicable law, limited at the option of TRAILD Group, to the replacement of the good or resupply of the service or to payment of the cost of replacement or resupply.
16.3 No liability
To the extent legally permitted and despite anything else in this Agreement except clause 16.2, neither party is liable for:
(a) indirect, special, incidental or consequential loss or damages;
(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); or
(c) 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 Group or the Customer’s use of or reliance on the TRAILD IP, even if TRAILD Group has been advised of the possibility of such loss or damage.
16.4 Liability limitation
TO THE EXTENT LEGALLY PERMITTED AND DESPITE ANYTHING ELSE IN THIS AGREEMENT EXCEPT CLAUSES 16.2 AND 16.3, TRAILD GROUP’S TOTAL AGGREGATE LIABILITY FOR LOSSES, COSTS, CLAIMS AND DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NUMBER OF CLAIMS, EVENTS, OR CAUSES OF ACTION, 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 GROUP OR THE CUSTOMER’S USE OF OR RELIANCE ON THE TRAILD SYSTEM, TRAILD SERVICES, TRAILD PAY SERVICES AND TRAILD IP, IS LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY THE CUSTOMER TO TRAILD IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE UNDER THIS AGREEMENT.
The Customer agrees that the forgoing limitations are essential elements of this Agreement and a reasonable allocation of risk between the parties.
16.5 Indemnity
(a) TRAILD Group is not able to control in advance or supervise the information uploaded by the Customer into the TRAILD Systems. The Customer indemnifies TRAILD Group 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:
(1) the access, processing, use or disclosure of the Customer Data by TRAILD Group, when conducted in accordance with this Agreement (including, without limitation, any claims by a third party against either TRAILD Group or the Customer with respect to such access, processing, use or disclosure by TRAILD Group of such data); and
(2) 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 or TRAILD Pay’s ability to properly carry out the TRAILD Pay Services;
(b) TRAILD and/or TRAILD Pay may at its own expense participate in the defense and settlement of any claim relating to or arising in connection with this Agreement, the TRAILD Systems, the TRAILD Services or the TRAILD Pay Services, and the Customer must not settle such a claim without TRAILD’s or TRAILD Pay’s prior written consent.
(c) TRAILD Group must take reasonable steps to mitigate any Loss for which it seeks indemnification under this Agreement. The Customer’s liability under this clause 16.5 will be reduced proportionately to the extent that the liability was caused by TRAILD Group’s gross negligence or breach of this Agreement.
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; and
(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, 5 business days after the date of posting to the addressee whether delivered or not; or
(3) if sent by email, at the time of sending unless a delivery failure notification is received by the sender,
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.
17.2 Entire agreement and variation
(a) 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.
(b) This Agreement may be varied by the written agreement of each party.
(c) TRAILD Group may vary this agreement from time to time to the extent required to protect its legitimate business interests, or meet changes to mandatory legal and/or other regulatory requirements. All such variations shall be effective thirty (30) days after the date TRAILD Group gives the Customer written notice of the variations. By continuing to access or use the TRAILD Systems, TRAILD Services or TRAILD Pay Services after the date that the variations become effective, the Customer agrees to be bound by the revised Agreement. If the Customer does not agree to the revised Agreement, the Customer may terminate this Agreement by written notice to TRAILD Group without penalty at any time within thirty (30) days of TRAILD Group giving the Customer notice of the variations.
17.3 Delay
TRAILD Group 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.
17.4 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.
17.5 Severability
If any of the provisions of this Agreement are invalid, the enforceability of the remaining provisions shall not be affected.
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.
17.7 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.
17.8 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 Group may, at any time, delegate the performance of the Agreement, in whole or in part, to any TRAILD affiliate. TRAILD Group may, at any time, novate, assign or transfer this Agreement, or part or all of its rights and obligations under this Agreement (including by way of corporate reorganization, merger, change of control, acquisition of all or substantially all of the assets of TRAILD Group or otherwise), to any affiliate or third party and, to the extent required, the Customer consents to the novation, assignment or transfer. If required by TRAILD Group, the Customer agrees to enter into a novation, assignment or transfer agreement on terms specified by TRAILD Group.
(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.
17.9 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.
17.10 Venue
The parties hereby agree that any suit, action, or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort, or otherwise, shall be brought in:
(a) the United States District Court for the District of Delaware or in the Court of Chancery of the State of Delaware (or, if such court lacks subject matter jurisdiction, in the Superior Court of the State of Delaware), if the Customer’s primary business address is in the United States of America;
(b) the courts of the Province of Ontario, if the Customer’s primary business address is in Canada;
(c) the courts of England and Wales, if the Customer’s primary business address is in the United Kingdom;
(d) the courts of Ireland, if the Customer’s primary business address is in Europe;
(e) the courts of Victoria, Australia, if the Customer’s primary business address is in Australia;
(f) the courts of New Zealand, if the Customer’s primary business address is in New Zealand;
(g) the courts of South Africa, if the Customer’s primary business address is in South Africa; or
(h) the courts of Victoria, Australia, if the Customer’s primary business address is in any country not specified elsewhere in this clause.
Each of the parties hereby irrevocably consents to the jurisdiction of the applicable courts above (and of the appropriate appellate courts therefrom) in any such suit, action, or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding in any such court or that any such suit, action, or proceeding which is brought in any such court has been brought in an inconvenient forum.
17.11 Force Majeure
Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including without limitation fire, flood, earthquake, denial of service attacks, pandemics, internet failures, acts of war, labor disruptions, or any laws, acts or restraints of any government or governmental authority; provided, however, that the affected party must make commercially reasonable efforts to mitigate the impact of the force majeure event. Notwithstanding the foregoing, the Customer shall remain liable for its payment obligations under this Agreement, and such obligations shall not be excused or delayed due to a force majeure event.
