Transformd Terms of Business

MSA - Terms of Business

Thank you for your interest in our Transformd software as a service offering and related  services. This document sets out the terms on which we offer to provide our Products and  Services to our clients.   

(In this document, ‘we’ or ‘us’ means Transformd Pty Ltd (ABN 52 602 839 707) and ‘you’ or ‘Client’  means the company, Government agency or other legal entity named on an Order Form.)  

1. This creates a binding contract  

1.1 Contract  

We offer to supply the Products and Services to you on these general terms, plus any other terms in  an Order Form. You may accept this offer by: signing our Order Form; issuing a purchase order for the  Products &/or Services; clicking on ‘I accept’ (or similar term) in an online form; or starting to use the  Products.  

If you do any of these things, a legally binding contract will be created, comprising these general  terms plus the Order Form terms (Contract).  

1.2 Order Forms Prevail  

If there is any inconsistency between these general terms and specific terms agreed in writing in an  Order Form or purchase order, the specific terms prevail.  

1.3 Entire Contract 

This Contract contains everything we have agreed relating to the matters it deals with. You  acknowledge that you have not relied on any warranty or representation which is not specifically  stated in the Order Form. If you give us your terms and conditions (e.g. as referred to in a purchase  order or other document), those terms and conditions are of no legal effect relating to our Products  and Services and do not form part of this Contract.

2. Definitions  

Additional Services means Services which we may provide in addition to the Support Services, such as  diagnosing and correcting reported problems which are outside the scope of Support Services (e.g.  problems caused by operator error, hardware failure or failure to maintain current back-ups of data  and software), assistance with installing, implementing or configuring the Product, developing  software customisations, providing training or consulting.  

Approved Use means the use for which the Client may use the Product as set out in an Order Form,  such as an approved number of users, forms, or instances of the Products, or Client sites or territories,  or lines of business, or other restrictions on use.  

Charges means the Charges for the Products and Services as set out in an Order Form (as varied  under these terms).  

Confidential Information means any information provided by a party or any of its employees, agents,  related parties or representatives to the other party or any of its employees, agents, related parties or  representatives, or otherwise obtained by that party (whether oral, written or viewed by inspection)  which is marked as "proprietary" or "confidential" or similar language or which the recipient knows or  reasonably should know is proprietary or confidential.  

Confidential Information includes:  

a. the terms of this Contract and any Order Form;  

b. Intellectual Property, software, specifications, ideas, concepts, plans, formulas, drawings,  procedures, financial information, reports, technical information and forecasts;  c. the Transformd Materials, and;  

d. details of each party’s internal systems, business processes, future product plans, marketing,  customers, prospects, finances, personnel and operations.  

Client Data means the proprietary data and content of the client provided to Transformed for the  purpose of providing or testing the Services. 

Documentation means documents about the Products or Services as provided by us from time to time,  and may include installation guidelines, specification documents and user guides and other resources  provided on a web portal.  

End User means each person who has access to, uses or operates the Products purchased or licensed  by Client, including Client’s employees, invitees, agents and subcontractors (but not including our  employees, agents and subcontractors).  

Infringement Claim means any claim made against Client alleging that any part of the Transformd  Materials or Client’s authorised use of the Transformd Materials infringes any third party's Intellectual  Property Rights.  

Initial Term means the initial term as set out in an Order Form.  

Intellectual Property or Intellectual Property Rights includes copyright, trade mark, design, patents  (whether registered or not), trade, business or company names, domain names, or other proprietary  rights, Confidential Information or any rights to registration of such rights existing in any country, whether created before, on or after the date of the Order Form.  

Transformd Materials means materials created by us and provided to you in the course of performing  this Contract including the Documentation, Software designs and drawings, and reports provided as  part of the Support Services.  

Modern Slavery Laws means the Modern Slavery Act 2018 (Cth) and any state laws that relate to  modern slavery.  

License means your right to use the Transformd Materials.  

Order Form means an order form for Products &/or Services signed by you and us. 

Products  means the Transformd Products set out in an Order Form. 

Services means, collectively,  Support Services and any Additional Services.

Software means:  

a. the object code versions of the software Products;  

b. the object code versions of any other software we provide to you under this Contract; and  

c. any updates and additions to the software described in (a) and (b) that we make, including any  software delivered through Support Services or Additional Services.  

Start Date means the date set out on an Order Form.  

Subscription License means a License that continues for so long as you pay the Charges for Support  Services.  

Support Services means the services set out in Schedule 1, as updated by us from time to time, and  any additional or different services described in an Order Form.  

Term means the Initial Term described in an Order Form plus any renewal term as set out in clause  9.1, until terminated under clause 9.  

Warranty Period means for so long as you pay the Subscription Charges and orSupport Services.  

3. Ordering Products and services  

3.1 Order Forms  

You may order Products and Services by both of us signing a written Order Form. We will prepare an  Order Form, which will include details of the Products ordered (and licensing terms); the scope of any  Services; and the Charges.  

3.2 Delivery, License expiry for non-payment  

Promptly after the Start Date (or other date agreed on an Order Form), we will deliver the Product to  you. You acknowledge that we may prevent use of the Software if our Charges are not paid within  agreed time limits.  

4. Grant of License  

4.1 License

Subject to all the other terms of this Contract, we grant to you a non-exclusive, non-transferable  license to use the Transformd Materials during the Term. You acknowledge that:  

a. the Products are licensed, not sold, to you;  

b. we reserve all rights not expressly granted by this Contract including ownership of all  Intellectual Property Rights in the Transformd Materials, and;  

c. no development to your specifications or based on your feedback or suggestions gives you  ownership of any rights in any invention or derivative work.  

4.2 Duration  

The License begins when the Product is made available to you and continues as a Subscription License.  The License continues for so long as you pay the Charges for Support Services.  

4.3 Limitations  

Means:  

a. You may only use the Products within the Approved Use/s and other limitations as set out in  the relevant Order Form.  

b. Unless permitted in an Order Form, the Transformd Materials must only be used by you and  for your benefit; and you must not use the Product in a production environment for the  purposes of resale or to process the data or business of any third party or to operate a  bureau service.  

c. You may not assign or transfer the Product or your License or sublicense the Software to  any third party without our prior written consent.  

d. Your License to use the Transformd Materials is subject to clause 6  

(Confidentiality).  

e. You must not copy the Transformd Materials.

f. You must not:  

i. make derivative works of the Products, or modify, alter or change the Products;  

ii. allow any person, other than your employees, agents or representatives, to access and  use the Products or Documentation; and, before permitting any third party agent or  representative to access and use the Products, you will require such third party agent  or representative to agree in writing to only use the Products during the Term on your  behalf in accordance with this Contract, and to maintain all Confidential Information of  Transformd in strict confidence. You shall remain responsible for such third party’s use  of the Products;  

iii. disassemble, decompile, reverse-engineer, or otherwise attempt to view or access the  source code to the Products;  

iv. copy, reproduce or transmit to the public any of the Transformd Materials;  

v. attempt to unlock or bypass any initialisation system, encryption methods or copy  protection devices in the Products;  

vi. alter, remove or obscure any patent, trademark or copyright notice in the Products; orvii. use components of a Product independent of the Products they comprise. 

g. Any unauthorised use of the Products, or unauthorised modifications, alterations or changes to  the Products, will terminate the warranties provided in this Contract and entitle us to  terminate the License and Support Services for such Products.  

4.4 Use  

You have sole responsibility for your use of the Product, including using the Product in accordance with  the Documentation or other instructions provided by us and ensuring your relevant staff are trained  in using the Product.  

4.5 Export Controls  

You will comply with all export laws and restrictions and regulations of Australia.  

4.6 Third Party Software  

The Product may include third party software which may be subject to additional or different terms or  conditions. To the extent that any third party software terms conflict with any of these terms, the third  party software terms will prevail with respect to your use and distribution of the applicable third party  software.  

We may incorporate free or open source material in the Product. We are responsible for ensuring that  the License terms of any such free or open source material do not conflict with the License for the  Product, or otherwise prevent you from using the Product in accordance with this Contract.  

4.7 Escrow  

If you ask us in writing, we will add you as a beneficiary to our Escrow Agreement with Iron Mountain  (or any replacement escrow agent). You are responsible for paying all charges to the escrow agent as  well as our charge of $1,000 per year.  

We will notify the escrow agent to release a copy of the source code of the Software to you if any of  the following things happen:  

a. We become subject to any form of external insolvency administration, including having an  administrator, receiver or liquidator appointed;  

b. We terminate Support Services for the Products (except because of your breach or failure to  pay applicable support Charges) and we have not made available to you a superseding version  of the Products;  

c. We stop conducting business in the ordinary course; or  

d. Any other release condition we agree to in our agreement with the escrow agent. 

If you get a copy of the source code to the Products under this clause, you may use the source code on  the same terms as the License, and subject to all the terms of this Contract. Under no circumstances  may you market, distribute or otherwise provide the Products or source code, or any derivative, to any  third party.  

5. Support Services

5.1 Providing Support Services  

We will provide the Support Services to you as described in Schedule 1 (which we may amend from  time to time) and otherwise in accordance with this clause 5.1. Unless otherwise stated in the Order  Form Support Services are restricted to supporting the underlying Transformd Platform and do not  extend to solutions built on the Transformd platform, platform configurations or extensions built  specifically for the Client. 5.2 Duration  

5.2.1 Unless agreed otherwise in an Order Form:  

For our Subscription License:  

a. We will provide Support Services for the Initial Term. You may not terminate Support Services  early (unless you terminate this Contract for our insolvency or breach under clause 10.2, in  which case the License also terminates);  

b. After the end of the Initial Term, the Support Services (and License) automatically renew each  year unless you terminate Support Services by giving two months’ written notice before the  renewal date. We will give you a reminder three months before the renewal date; c. You will pay the Charges for Support Services (together with Charges for the License) yearly,  quarterly or monthly in advance, as set out in an Order Form.  

5.3 Client Assistance  

In order for us to provide the Support Services, you will be responsible for the following items or  activities, plus any responsibilities set out in an Order Form. You acknowledge that failure to provide  such assistance will affect our ability to provide Support Services within target response or resolution  times.  

a. You will ensure your personnel are trained in the operation of the Products, have knowledge  and experience of software products sufficient for proper interaction with our technical staff  regarding support services, including authority to implement remedial actions as instructed by  us.  

b. You will give us sufficient documentation, data, details and assistance with respect to any  reported errors so as to enable us to reproduce and verify the same as an error.  c. Where the Product is Client Hosted, you will assist us to diagnose and correct reported errors  by providing reasonable access (on-site or remote as requested by us) to the applicable  Software, the computer environment and hardware on which such Software is installed and  operating. 

6. Charges  

6.1 Charges, Taxes and Payment Terms  

You agree to pay us the Charges, in the amounts, currency and instalments as set out in each Order  Form. Where we are obliged to charge, pay or account for a value added tax, goods and services tax,  sales tax or other similar consumption tax or we are subject to any customs, import, tariff or similar  duty as part of providing the Products or Services, the invoiced price shall be increased by the amount  of such tax or charge. You will pay all amounts within 14 days from the date of our invoice. Recurring fees are payable in advance from the beginning of the next billing period.  

6.2 Expenses  

Unless specified otherwise in an Order Form, you will reimburse us for all reasonable expenses we  incur in providing the Support Services or Additional Services, including travel and accommodation  costs. We will seek your consent before incurring any expense over $2,000 and will provide reasonable  supporting details of all such expenses on our invoices.  

6.3 Overdue  

If any payments are overdue then we may, after giving you at least two weeks’ notice, suspend supply  of Products or Services. As a condition of any subsequent supply, we may vary your payment terms,  including requiring prepayment or security of payment. We may charge interest on late payments at  the rate of one percent (1%) per month or the highest amount permitted by law, whichever is greater,  calculated daily from the due date.  

7. Confidentiality  

7.1 Obligations  

Where one party (in this clause, Recipient) receives Confidential Information from the other party  (Discloser), Recipient must:  

a. hold the Discloser’s Confidential Information in strict confidence, and apply at least the standard  of care used by the Recipient in protecting its own Confidential Information, but not less than  a reasonable standard of care;  

b. not disclose such Confidential Information to any third party, except as permitted under this  Contract; 

c. not use any Confidential Information of the Disclosure except as reasonably required to exercise  its rights or perform its obligations under this Contract;  

d. immediately notify Disclosure of any potential, suspected or actual unauthorised use, copying  or disclosure of its Confidential Information; and  

e. cause its employees, subcontractors, agents and, if permitted, related companies, who require  access to such Confidential Information to abide by such obligations.  

7.2 Permitted use  

Notwithstanding clause 7.1, Recipient may use or disclose the Confidential Information to the extent  necessary to comply with any law or the requirements of a regulatory body (including a stock  exchange), or to obtain professional legal or accounting advice, or for use in legal proceedings  regarding this Contract.  

7.3 Exceptions  

Clause 7.1 does not apply to Confidential Information which Recipient can prove by written  evidence:  

a. is in or becomes part of the public domain other than through breach of an obligation of  confidence;  

b. was known to Recipient at the time of disclosure, unless such knowledge arose throughbreach of an obligation of confidence;  

c. was independently developed by Recipient; or  

d. is acquired from a third party who was entitled to disclose it.  

7.4 Return or destroy  

Upon termination of this Contract, and at the written request of the Disclosure, the Recipient shall  promptly return or destroy all Confidential Information in its possession and certify its destruction in  writing, provided however, that the Recipient may retain one copy of the returned or destroyed items  for archival purposes in accordance with its records-retention policies and subject to this clause. The  obligations in this clause 7 continue to apply after this Contract expires or is terminated.  

7.5 Right to Injunction  

The parties agree that the Disclosure may be irreparably damaged if the obligations under this clause 7  are not enforced and such party may not have an adequate remedy in the event of a breach by  Recipient; and therefore the Disclosure is entitled to seek, in addition to other available remedies, an  injunction or any other appropriate equitable order or decree restraining any actual, threatened or  further breaches of the Recipient’s obligations under this clause 7.  

7.6 Publicity  

We may prepare a press release, case study or other material regarding your use of the Products, with  publication subject to your prior written consent, which will not be unreasonably withheld or delayed.  Subject to your prior written consent, we may also include your name in any client list. Otherwise,  neither party will use the name of the other party in publicity releases or similar activity without the  consent of the other party.  

7.7 Personal Information  

If as a result of this Contract, we are able to access any information about identifiable individuals  (“Personal Information” or “Sensitive Information”) held by or on behalf of you then we:(a) must comply with the Privacy Act and all other applicable privacy laws and such other data  protection laws as may be in force from time to time which regulate the collection, storage, use and  disclosure of information, as if we were regulated by these laws;  

(b) must comply with any of your directions that are consistent with the laws, codes and policies  referred to in clauses 7.7(a) and 7.7(b) above;  

(c) must use the information only for the purposes of performing our obligations under this Contract; (d) must restrict access to any information to our Representatives who need to access information  to fulfil our obligations under this Contract;  

(e) must promptly notify you in writing of any request made by such an individual for access to the  information;  

(f) must promptly notify you in writing in the event that we become aware of any privacy related  complaint and must cooperate with you in the resolution of any complaint under, or relating to, any  of the laws, codes or policies referred to in 7.7(b) above; 

(g) must immediately notify you in writing in the event that we become aware of any unauthorised  access, unauthorised disclosure, interference (including hacking), misuse or loss of the information;  and  

(h) must obtain prior written consent from you. If we intend to send or disclose information relating  to this Contract outside of Australia; and must provide you with attestations with respect to privacy on a regular basis or as required by you.  

7.8 Data Security  

We acknowledge that:  

(a) your ability to maintain information security is of utmost importance and the security of Client  Data is fundamental to your business;  

(b) you, as a provider of financial services, is entrusted with personal and sensitive information about  its customers, including health and financial information which must be held securely;  

(c) you have obligations to report data breaches and/or security incidents to Australian  Government regulators on a timely basis; and  

(d) we must have processes and controls in place to promptly identify and report data breaches and/or  security incidents to you so as to assist you to meet your legal and regulatory obligations and  community expectations.  

(e) establish, maintain, enforce and continuously improve safety and Information security procedures,  controls and processes against the unauthorised use, access, destruction, loss or alteration of Client Data and your other Confidential Information;  

(f) establish, maintain, enforce and continuously improve safety and Information security procedures,  controls and processes against the unauthorised use, access, destruction, loss or alteration of Client Data and your other Confidential Information;  

(g) not make any undocumented, unreported or unauthorised configuration changes to any  information assets or to the information security procedures, controls and processes that secure Cient  Data, if those changes would decrease the protections afforded to Client Data;  

(h) notify and keep you notified at all times of our current information security procedures, controls  and processes and any amendments to such procedures, controls and processes which adversely  affect, or are likely to adversely affect, your ability to manage the Services or the security of the  Services or maintain information security.  

7.8A   If we become aware of any security incident we must immediately (and in any event within 24  hours):  

(a) notify you of the security incident;  

(b) identify the cause of the security incident ;  

(c) use best endeavours to rectify any actual security incident and its consequences;  

(d) use best endeavours to ensure that any potential security incident does not become an actual  security incident;  

(e) investigate any alleged or suspected security incident; and either:  

(f) implement rectification measures if an actual security incident occurred or a security incident is  likely to occur; or 

(g) confirm to you that no actual security incident occurred or is likely to occur;  

(h) provide you with a report detailing the cause of, and procedure for correcting, the security  incident;  

(i) provide you with reasonable evidence that the security incident will not occur again; and  

(j) certify that we have taken all commercially reasonable steps to prevent any recurrence of such a  security incident.  

8. Warranties  

8.1 General  

We represent and warrant that we have the necessary authority to grant the License and perform all  our obligations under this Contract.  

8.2 Product Limited Warranty 

8.2.1 We represent and warrant that during the Warranty Period the Products shall perform all  material functions set out in the applicable Documentation and shall otherwise operate in substantial  accordance with such Documentation.  

8.2.2 If, during the Warranty Period the Products fail to comply with this warranty, you must notify us  in writing of any alleged defects with the Products. We will have 30 days from receipt of such notice  or an additional period of time as reasonably agreed to by the parties to correct such defects in  accordance with Support Services in Schedule 1.  

8.2.3 If we are unable to correct such defects in a reasonable time, you may elect to terminate the  License to such Product during the Warranty Period; and if so, we will give you, as your exclusive  remedy, a refund of all Charges previously paid for such Products.  

8.3 Virus  

8.3.1 We represent and warrant that to the best of our knowledge after utilizing commercially  available virus-checking software, the Products as delivered to you will be free from computer  software viruses, worms, trap doors, back doors or other functions (collectively, Virus) that  detrimentally interferes with or otherwise adversely affects your use of the Products.  

8.3.2 If you detect a Virus, you will promptly notify us and use your best commercial efforts to mitigate  against any damages or effects caused by the Virus; while we will use our best commercial efforts to  promptly eliminate such virus.  

8.4 Services  

8.4.1 We warrant that the Services will be provided:  

a. promptly, carefully, exercising all due care, skill and judgement, in an efficient and professional  manner and in accordance with generally accepted professional and business practices; and  b. using appropriately trained and skilled personnel.  

8.4.2 If the Services fail to comply with this warranty, you will promptly notify us in writing including  reasonable details of any alleged defects. Upon such notice, we will, as your exclusive remedy, promptly re-perform any such Services in accordance with this Contract. We are not responsible for  any delay or defect in performing any Services due to any cause outside our reasonable control.  

8.5 Disclaimer  

We do not warrant that the Products will operate error-free or that we will correct all Product errors.  Except for the express warranties in this Contract (including an Order Form), the Products are provided  “as is'' and we disclaim all other warranties, express or implied, with respect to the Products and  Services, including but not limited to, any warranty of merchantability, fitness for a particular purpose,  accuracy, reliability, course of dealing, course of performance or usage in trade. 

We will not be liable  for any claims or damages caused by the unauthorized use of the Products or acts of abuse or misuse  by Client or End Users. In addition, we will not be liable for any loss or damage in connection with or  arising out of the interruption or loss of use of the Products or the loss or corruption of your data or  files processed or stored by the Products, unless such loss or damage is caused by our (Transformd's)  act, omission or negligence.  

9. Liability  

9.1 Infringement Claims  

9.1.1 Subject to the rest of this clause 9, we will arrange for the defence or settlement of any  Infringement Claim and we shall pay or arrange for the payment of your reasonable legal fees and any  damages and costs awarded against you in respect of such Infringement Claim (but we shall not be  liable for any indirect or consequential loss or damage arising in connection with such Infringement  Claim). You must:  

a. promptly notify us in writing of any Infringement Claim;  

b. cooperate with us to defend any such claim; and  

c. not settle or make any admission of liability without our prior written consent. You can choose to  participate in the defense of any claim with your own lawyers, at your own cost.  

9.1.2 If an Infringement Claim has been made or threatened or we consider the Transformed  Materials may infringe any third party’s rights, we have the option to:  

a. modify the Transformed Materials (at our cost) so it becomes non-infringing; b. obtain a  licence for you (at our cost) to continue using the Transformd Materials; or  

c. if we determine that neither of these options is feasible, we may terminate the licence of the  infringing Transformd Material and refund the licence Charges you have paid for the infringing  Transformd Material.  

9.1.3 We will have no liability or obligation for, and shall be indemnified by you against, all loss  expense  

a. use of the Product or other materials outside of the scope of the Licence or in breach of this  Contract; 

9.1.4 This clause 9.1 constitutes our sole liability and your sole remedy (whether under this Contract  or otherwise) in connection with any actual, suspected or alleged infringement of any third party  Intellectual Property Rights.  

9.2 Exclusion of Indirect Loss  

Each party excludes all liability for any loss of product, loss of data, loss of revenue, loss of profit, loss  of or damage to reputation, loss of anticipated savings or benefits, or any indirect, special or punitive  loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded  against the other party arising directly or indirectly under or in connection with this Contract or the  performance or non-performance of this Contract and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, except for: interest due by  any party for late payments; personal injury or tangible property damage, losses relating to fraud or  wilful misconduct, breach of confidence, breach of privacy or infringement of Intellectual Property  Rights.  

9.3 Limits  

9.3.1 Our liability to you for all claims relating to Products or Services is limited, at our option, to:  

a. in the case of services, the cost of supplying the services again or payment of the cost of  having the services supplied again; and  

b. in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the  goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or  having the goods repaired.  

9.3.2 You agree that except for claims under clause 9.1, clause 9.2 and clause 9.6, our total liability  arising out of, connected with, or resulting from the performance or non-performance of this Contract,  whether based on contract, warranty, tort (including negligence), statute or otherwise, is capped at  the amounts you have paid us under this Contract during the 12 months before the events giving rise  to your claim.  

9.4 Contribution  

Each party’s liability shall be reduced proportionately to the extent that the other party’s acts or  omissions cause or contribute to, directly or indirectly, the loss or damage for which the first party  is liable.  

9.5 Excused Performance  

Each party will not be liable for, or be considered to be in breach of or default under this Contract  (except an obligation to pay money) on account of, any delay or failure to perform as required by this  Contract as a result of any cause or condition beyond that party’s reasonable control.  

9.6 Indemnity - third parties 

We agree to indemnify and hold you (and your directors, officers, employees and agents), harmless  from and against any and all losses, damage, liabilities, penalties, court cost, professional fees  (including legal fees) and expense incurred by you resulting or arising in whole or in part from any act  or omission by any third party integration service provider (e.g. OneSpan, Green ID). 

10. Term and termination

10.1 Term  

This Contract begins on the date it is formed under clause 1.1 and continues for the Initial Term and  then continues for as long as you pay the Charges for Support and Subscription Services (or unless  otherwise terminated under clause 10.2).  

10.2 Breach or Insolvency  

Either party may terminate this Contract if the other party:  

a. breaches this Contract and does not remedy the breach within two weeks of written notice;  

b. breaches any term of this Contract which cannot be remedied (including a breach of  confidentiality or Intellectual Property Rights); or  

c. becomes subject to an event of insolvency (including having an administrator, receiver or  liquidator appointed).  

10.3 Obligations on termination  

When this Contract is terminated or expires:  

a. hold the Discloser’s Confidential Information in strict confidence, and apply at least the standard  of care used by the Recipient in protecting its own Confidential Information, but not less than  a reasonable standard of care;  

b. not disclose such Confidential Information to any third party, except as permitted under this  Contract;  

c. The License will terminate, you will immediately stop using the applicable Products. If requested,  you will certify in writing to us that you have complied with these obligations.  

10.3.2 Each party must immediately return (or certify that it has destroyed) all of the other party’s  Confidential Information, except for any information which the recipient needs to retain in order to  perform any ongoing obligation under this Contract (and any archive or back-up copies, subject to  ongoing confidentiality restrictions).  

10.3.3 Any clause which by its terms is intended to survive the expiration or termination of this  Contract will do so.  

10.3.4 Each party retains its rights under this Contract and at law in respect of any breach of this  Contract by the other party.  

11. General  

11.1 Independent Contractors  

The parties are independent contractors, not employees, agents, partners, franchisees, or  representatives of each other. Each party is not authorized to, and will not attempt to, create or  assume any obligation or liability, express or implied, in the name or otherwise on behalf of the other  party.  

11.2 Construction  

In interpreting this Contract, no presumption shall be made against the party that drafted the term.  The singular includes the plural and vice versa. Words like including, for example, such as or similar  expressions are to be interpreted as meaning including, without limitation. Headings are for  convenience only and do not affect the interpretation of this contract. Any notices required under this  Contract must be in the English language.  

11.3 Severability  

If a clause or part of a clause of this document can be read in a way that makes it illegal, unenforceable  or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in  the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is  to be treated as removed from this document, but the rest of this document is not affected.  

11.4 Variation & Waiver  

No variation of this document will be of any force or effect unless it is in writing and signed by the  parties to this document. The fact that a party fails to do, or delays in doing, something the party is  entitled to do under this document, does not amount to a waiver of any obligation of, or breach of  obligation by, another party. A waiver by a party is only effective if it is in writing. A written waiver by  a party is only effective in relation to the particular obligation or breach in respect of which it is given.  It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of  that obligation or breach in relation to any other occasion.  

11.5 Governing law  

This Contract and performance under it shall be governed by the laws of New South Wales without  regard to its choice of law principles. Each party unconditionally accepts the jurisdiction of the courts  of New South Wales and any related appellate court provided that each Party shall have the right to  enforce a judgment of those courts in a jurisdiction in which the other Party is incorporated or in which  any assets of the other Party may be situated.  

11.6 Modern Slavery  

(i) We will ensure that we and each of our subcontractors take reasonable steps to review our supply  chains and business for modern slavery or human trafficking, and assist You with your compliance with  Modern Slavery Laws.  

(ii) We will notify You as soon as we become aware of any material actual or suspected breach of a  Modern Slavery Law or modern slavery or human trafficking in a supply chain which has a connection  with this Contract.  

(iii) You have a right to terminate this Contract with prior notice to us in the event we have caused or  contributed to adverse human rights impacts and failed to address these impacts.

Schedule 1 - Support Services  

1. Overview of Support Services  

Support Services consist of:  

a. Online Service Centre – see section 2;  

b. Enhancements – see section 3, and;  

c. Error correction – see section 4.  

2. Online Service Centre  

Transformd provides an Online Service Centre to assist Clients with the use of the Products.  

Support can be requested via the following Online Service Centre portal at  https://support.transformd.com (or other URL provided from time to time).  

The preferred method of communications is via the online Service Centre. All  communications will be in English.  

Client will appoint a principal contact to coordinate Support Services within Client's organisation  and to act as a single point of contact with Transformd’s Support team. A power user may be the  single point of contact for multiple sites within the Client's organisation.  

The Online Service Centre can be accessed by Client’s power users who have registered to receive  Support Services. Self registration is via the Online Support Centre at  

https://support.transformd.com . 

An ‘incident’ is a single issue, problem, error or question. If you have more than one incident,  please log each one individually. Once the incident is logged, a Customer Support Consultant  will assess your incident and respond accordingly. You can also access the Online Service  Centre to:  

● Gain information relating to future release schedules;  

● Gain access to existing Tip Sheets and Frequently Asked Questions;● Log  suggestions and comments for consideration in future versions.  

3. Enhancements  

Support Services includes receiving ‘Enhancements’, which means newer versions of Products if  and when developed and generally released by Transformd in its discretion. Typically, major releases are released once a year and minor releases may be released  throughout the year. Patch releases may be released between minor releases to address specific  functionality issues.  

4. Correcting Errors  

Support Services includes correcting ‘Errors’, which means where the base version of the  Software fails to perform in a material way with the documentation provided by Transformd.  

Transformd shall use all reasonable endeavors to correct any Error in the Software, with a level of  effort commensurate with the Error Severity Levels as determined by Transformd, within the Response  Time, identified in section 5 below.  

Correcting an Error may require Transformd to provide release updates to the platform.  

4.1 Support Procedures  

Transformd will log all problems with the Software reported by Client in accordance with the  procedure set out in this Schedule.  

Upon identification of any Error, Client shall provide Transformd with enough information to  reproduce the Error. If Transformd is unable to replicate the Error, Transformd will request a  second sample. If Transformd is still unable to replicate the Error from this second sample then  Transformd will close the reported Error.  

Transformd will notify Client as soon as possible if it determines that no Error exists or if Transformd  is unable to reproduce the reported Error.  

4.2 Exclusions From Support  

Transformd shall have no obligation to provide Support in connection with any  error, questions or problems that arise from:  

a. any modification, customization, alteration or addition to Software, or attempt thereof, made  by Client  

b. use of the Software: 

i. in a manner other than described in the user help menus;  

ii. in conjunction with software, equipment, or an operating environment that was not the  Environment; or  

iii. in any way not permitted under the Contract 

c. the negligence or misconduct of any User;  

d. the malfunction of any equipment, connectivity or data sources not provided by Transformd;  e. failure by Client to implement reasonable recommendations in respect of or solutions to  Errors previously advised by Transformd;  

f. the creation or correction of custom components or API integration issues. © 2020. Confidential 

5. Severity Levels and Response Times  

5.1 Incident Severity Levels  

Incidents will be categorized and actioned according to an assigned severity level.  

5.2 Response Times  

Response times vary based on the “Hours of operation” and Support Levels as nominated in the  relevant Product Order Form. The response times are measured and applicable from when the Client  receives a ticket number until an agent engages the Client to resolve or gather further information. 

5.3 Service Level Procedure 

For all Incident Severity Levels, the following procedure applies:  

a. Incidents must be reported by logging in via https://support.transformd.com and selecting  ‘Submit a request’ or anonymously via https://support.Transformd.com and selecting ‘Ticket’.b. Upon submitting the ticket, the Client will receive a ticket number via confirmation email.  Response times are applicable from receipt of this ticket number. The ticket will be reviewed by the Support Centre Representative to properly  categorize according to the Incident Severity Level. The Client will be notified if the Incident  Severity Level is amended and provided with reasons for this change.  

c. The Support Centre Representative will notify the Client of a resolution or work around for the  error or incident. This may involve an upgrade to the platform. If no solution is known, the  Support Centre Representative will request further information to diagnose or replicate the  described incident.  

d. The Support Centre Representative will provide the Client with a Service Request Status  response. The response will be one of the following:  

● “Under investigation”  

● “Waiting”  

● “Resolved”  

e. Should delays occur in addressing the ticket, the Client may escalate by contacting their  Account Manager  

6. Additional Services  

Items which are not included in Support Services may be provided as an Additional Service, for an  additional Charge. These may include:  

● Diagnosing and correcting reported non-conformities which are not Errors in the platform or  which relate to the matters described in section 4.2;  

● Any other support or services of any nature not explicitly detailed in the Support Services  agreement.  

Client shall reimburse Transformd, at Transformd ’s then current professional services rates, for all  time spent troubleshooting an incident that Transformd determines was caused by one of the  conditions set forth in section 4.2, but was not identified as such until after Transformd began  troubleshooting the incident. 

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