Cloud Hosted Software as a Service Agreement

Effective from 01 November 2023

You (the “Customer”) agree to be bound by and accept the terms and conditions of this cloud hosted software as a service agreement (“SaaS Agreement”) on the earlier of: (a) signing and returning the SaaS Agreement or the FIA; (b) the Customer, or a director, officer, agent, employee or contractor of the Customer accessing or using the Services on any computer system; or (c) the Customer, or a director, officer, agent, employee or contractor of the Customer making a payment to Scenario Entity in respect of the Services, which is accepted by Scenario Entity.

The person who has agreed to be bound by this SaaS Agreement by accepting this SaaS Agreement warrants that he/she has the authority of and was authorised by the Customer to agree to acceptance on behalf of the Customer and agrees that acceptance is binding on the Customer. If for any reason this SaaS Agreement is not binding upon the Customer in the Customer’s jurisdiction, then the Customer is prohibited from accessing or using the Services in any manner whatsoever.

1.Definitions

“Access Right” has the meaning given in clause 3.

“Commencement Date” has the meaning given in clause 5.

“Content” means data, images, photographs, animations, video, audio, text, maps, databases, data models, spreadsheets, user interfaces, graphics components, icons, software applications, software development kits, application programming interfaces, software libraries, code samples, and other resources.

“Customer Content” means any Content that the Customer provides to Scenario Entity in connection with the Customer’s use of the Services, and any results derived from the use of Customer Content with Scenario Entity, and specifically excludes any feedback, suggestions, or requests for improvements that the Customer provides to Scenario Entity.

“FIA” means the Formal Instrument of Agreement annexed to this SaaS Agreement, if any.

“Initial Term” means the initial term specified in the Online Certificate of Authenticity.

“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

“Malicious Code” means software viruses; worms; time bombs; Trojan horses; or any other computer code, files, denial-of-service, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment.

“Moral Rights” has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.

“Named Users” means the named users permitted to access and use the Software in accordance with the Customer’s Access Right, as specified in the Online Certificate of Authenticity.

“Online Certificate of Authenticity” means the certificate of authenticity issued by Scenario Entity to the Customer.

“Online Services” means any commercially available, Internet-based service, including hosting of data and database services, that Scenario Entity provides to the Customer under this SaaS Agreement, including applications and associated APls for storing, managing, and using data and other information.

“Scenario Entity” means the Scenario Entity specified in the FIA, or if there is no FIA, the Scenario Entity specified on the final page of this SaaS Agreement.

“Proposal” means the proposal detailing the proposed scope of work, associated fees and other relevant materials, and includes any statement of work, quote or purchase agreement, as the case requires.

“Service Fee” means the fee for the Services as specified in the Proposal.

“Services” means the Software and the Online Services.

“Software” means all or any portion of Scenario Entity’s proprietary software technology, ‘Scenario’, accessible through an online interface, including the computer programs and associated documentation comprised therein.

“Term” means the Initial Term plus any additional term in accordance with clause 5.

“Territory” means the country or countries specified on the Online Certificate of Authenticity.

2. Ownership of Software

The Customer acknowledges and agrees that the Software and all Intellectual Property Rights in the Software are owned exclusively by Scenario Entity and/or its licensors from time to time. The Software is protected under copyright and other intellectual property laws of Australia and international copyright treaties. The Customer acknowledges and agrees that the price paid by the Customer for the Software is included in the Service Fee granting the Customer only the rights set forth in this SaaS Agreement.

3. Access to Software

Subject to this SaaS Agreement, Scenario Entity grants to the Customer, and the Customer accepts, access to the Software in the Territory for the Term, in accordance with any Access Right specified in the Online Certificate of Authenticity (“Access Right”). The Customer must only use the Software within the licensed company appearing on the Online Certificate of Authenticity. The Customer may allow the Software to be used by its related bodies corporate in which the Customer holds a majority shareholding, provided that the Customer has obtained Scenario Entity’s prior written consent to such use. The Customer agrees to use the Software only as authorised in this SaaS Agreement. This SaaS Agreement does not convey to the Customer any ownership rights or any other interest in the Software.

4. Scope of License

Subject to provisions of the Online Certificate of Authenticity, this Access Right is a named-user license, which means the Customer is authorised to use the Software on as many personal computers as required, provided that the maximum number of named-users does not exceed the number of Named Users nominated in the Customer’s current Online Certificate of Authenticity. Monitoring of usage is the Customer’s responsibility. Scenario Entity reserves the right to conduct audits of the Customer’s use and access practices, or to have such audits conducted by a third party.

The Customer must not (a) copy or make any changes or modifications to the Software; (b) translate, de-compile, disassemble or otherwise reverse engineer the Software; (c) loan, rent, lease, sub-license, or provide access to the Software or any copy to others for any purpose; (d) use the Software in any way that could (i) infringe the rights of Scenario Entity or a third party, including intellectual property rights and privacy rights; or (ii) damage the reputation of Scenario Entity or any of its licensors, or the goodwill or other rights associate with the Software; (e) make any attempt to circumvent the technological measure(s) that control access to the Software; (f) remove or obscure any of the patent, copyright, trademark, or proprietary rights notices of Scenario Entity or any of its licensors contained in or affixed to the Software; (g) unbundle individual or component parts of the Software for independent use; or (h) incorporate any portion of the Software into a product or service that competes with the Software.

The Customer must use all reasonable efforts to protect the Software from unauthorised use, access, modification, reproduction, distribution or publication. The Customer must not make any uses or copies of the Software that are not specifically authorised by the terms of this SaaS Agreement, and Scenario Entity reserves all rights that are not expressly granted to the Customer.

5. Term and Termination

This SaaS Agreement will become effective on the date specified in the Online Certificate of Authenticity (“Commencement Date”) and will remain in force for the Initial Term, or until otherwise terminated in accordance with its terms.

This SaaS Agreement may be renewed for subsequent terms of similar duration to the Initial Term. The Customer shall provide at least 30 days’ notice in writing prior to the expiry of the Initial Term or any subsequent term if it wishes to renew the SaaS Agreement pursuant to this clause 5. Renewal of this SaaS Agreement is subject to Scenario Entity’s consent. The Customer agrees that Scenario Entity may require an adjustment of the Service Fee as a condition of providing its consent to renewal.

The Customer may terminate this license at any time by advising Scenario Entity in writing. Either party may terminate this SaaS Agreement by immediate written notice to the other party where the other party: (a) breaches or defaults in the performance or observance of any material provision of this SaaS Agreement, and such breach or default: (i) is capable of remedy and is not cured within 30 days after the giving of written notice to the other party specifying such breach or default; or (ii) is incapable of remedy; or (b) in the case of the Customer: (i) becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration (including bankruptcy, liquidation, voluntary administration or receivership); or (ii) ceases or threatens to cease conducting its business in the normal manner.

Scenario Entity may terminate this SaaS Agreement upon giving the Customer 60 days’ written notice if the Software is no longer available for Scenario Entity to provide access to the Customer for any reason.

In the event of any termination of the SaaS Agreement, the Customer must cease accessing the Software from any device and any copies (whole or partial), modifications or merged portions, and clear any client-side data cache derived from the terminated Services. The termination of this SaaS Agreement does not affect any right that has accrued to a party before the termination date.

Where this SaaS Agreement is terminated by the Customer for its convenience, or by Scenario Entity for the Customer’s breach: (a) the Customer is not entitled to any refund for any prepaid Service Fees as at the date of termination; and (b) within 30 days of the date of termination the Customer must pay to Scenario Entity any outstanding Service Fees payable to Scenario Entity for the remainder of the Term.

Where this SaaS Agreement is terminated by Scenario Entity upon 60 days’ written notice, or by the Customer for Scenario Entity’s breach, Scenario Entity must refund the Customer the balance of any prepaid Service Fees as at the date of termination (net of any other amounts owing to Scenario Entity) and this will be the sole remedy of the Customer.

6. Online Services

In addition to the Access Right, Scenario Entity will provide the Online Services to the Customer for the Term. The Online Services will be provided through Scenario Entity’s chosen data centres from time to time, which will be notified to the Customer.

The Customer acknowledges and agrees that (a) the use of the Online Services is subject to terms and conditions of Scenario Entity’s third-party providers; (b) those third-party providers are subject to change from time to time; and (c) those third-party provider terms and conditions may contain provisions where the third-party provider reserves the right to change, discontinue or deprecate the offering of the Online Services and related application programming interfaces at any time, including changing or removing features and functionality, as well as terminating the provision of the Online Services for any reason upon advance written notice.

The Customer must procure all necessary consents, authorities, licences and leases to enable Scenario Entity to provide the Online Services.

7. Services Generally

In addition to the requirements in clause 4, the Customer must not use or access the Services to (a) spam, spoof, or phish email; transmit junk email or offensive or defamatory material; or stalk or make threats of physical harm; (b) store or transmit any Malicious Code; (c) violate any law or regulation; (d) probe, scan, or test the vulnerability of any Services or breach any security or authentication measures used by any Services; (e) benchmark the availability, performance, or functionality of any Services for competitive purposes; or (g) manually or systematically harvest information and data contained within the Services other than Customer Content or otherwise authorised in relation to the use of the Services.

The Customer acknowledges that Scenario Entity may in its absolute discretion undertake maintenance, testing or repairs in relation to the Services.

Scenario Entity may provide the Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under this SaaS Agreement. Scenario Entity does not warrant that it will be capable of attending the Customer’s premises or of providing the Services at specific times requested by the Customer during the Term.

System failures or other events beyond Scenario Entity’s reasonable control may interrupt the Customer’s access to the Services. Scenario Entity may not be able to provide advance notice of such interruptions.

Scenario Entity may suspend access to the Services (a) if the Customer materially breaches this SaaS Agreement and fails to timely cure the breach; (b) if Scenario Entity reasonably believes that the Customer’s use of the Services will subject Scenario Entity to immediate liability or adversely affect the integrity, functionality, or usability of the Services; (c) for scheduled maintenance or to make modifications to the Services; (d) to enjoin a threat or attack on the Services; or (e) if the Services become prohibited by law or regulated to a degree that continuing to provide them would impose a commercial hardship.

The Customer acknowledges that access to and use of the Services may be temporarily unavailable, without prior notice, for any unanticipated or unscheduled downtime or unavailability of all or any portion of the Services, including system failure or other events beyond the reasonable control of Scenario Entity and its third party providers. When feasible, Scenario Entity will notify the Customer of any Services suspension beforehand and give the Customer reasonable opportunity to take remedial action. Scenario Entity is not responsible (in negligence or otherwise) for any damage, liabilities, or losses (including any loss of data or profits) that or any other consequences that the Customer may incur as a result any interruption or suspension of the Services, or removal of Customer Content in accordance with clause 12.

The Customer must promptly notify Scenario Entity if the Customer becomes aware of any unauthorised use of the Customer’s subscription or any other breach of security regarding the Services.

8. Third Party Software

If the Customer purchases any software from any person to be used in conjunction, connection or association with the Services for any reason, including to add functionality to the performance of the Software (“Third Party Software”), Scenario Entity will not be liable for any damage or loss that occurs to the Services or the Customer’s computer system or data. If Scenario Entity explicitly recommends or requires the Customer to use any Third Party Software in order to be able to access or use the Services, Scenario Entity will endeavour to solve any material issues that arise in connection with the reasonable, expected and ordinary use by the Customer of that Third Party Software in relation to the Services.

9. Customer Obligations

The Customer must keep accurate and complete records and accounts pertaining to its compliance with its obligations under the SaaS Agreement. Scenario Entity, or its appointed third party reviewer, may conduct a compliance review of these records and accounts on no fewer than 7 Business Days written notice by Scenario Entity, and no more than once per 12-month period, unless a compliance review reveals a material non-compliance. The Customer must promptly correct any non-compliance identified during the compliance review.

The Customer is solely responsible for its own computer systems, and must ensure that it takes precautions in respect of its use of the Services in accordance with this SaaS Agreement. Scenario Entity is not liable to the Customer for any interference with or damage to the Customer’s computer systems arising out of or in connection with the use of the Services.

10. Service Fees and Payment

In consideration of the provision of the Services, Scenario Entity will issue an invoice to the Customer for the Service Fees as specified in the Proposal or the Online Certificate of Authenticity, and if not specified in the Proposal or the Online Certificate of Authenticity, the Customer must pay the Service Fees to Scenario Entity within 30 days after the Commencement Date, and within 30 days after each anniversary of the Commencement Date if this SaaS Agreement is renewed under clause 5. The Service Fee is exclusive of all taxes, duties and surcharges payable in respect of the Services and in respect of this SaaS Agreement. If payment is not made within 30 days of the due date, interest will be payable by the Customer at the rate of 12 per cent per annum on the overdue amount and, if any payment is owing after 60 days from the due date, Scenario Entity will be entitled to suspend its remaining obligations under this SaaS Agreement and to suspend access to and use of the Services.

If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by the Supplier pursuant to this SaaS Agreement, the Customer must pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this SaaS Agreement. If it is subsequently resolved that a further amount is payable, the Customer must pay that amount together with interest at the rate of 12 per cent per annum.

11. Intellectual Property

Nothing in this SaaS Agreement constitutes a transfer of any Intellectual Property Rights. The Customer acknowledges that Scenario Entity and/or each of its licensors owns or licenses all Intellectual Property Rights in the Services and must not directly or indirectly do anything that would or might invalidate or put in dispute Scenario Entity’s or its licensors title in, or right to use, the Services.

The Customer must not seek, and must not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates the Services. This express prohibition of patenting shall not apply to the Customer’s software and technology except to the extent that the Services, or any portion thereof, is a part of any claim or preferred embodiment in a patent application or similar application.

Scenario Entity may freely use any feedback, suggestions, or requests for improvements for the Services that the Customer provides to Scenario Entity.

If any person makes any claim alleging that any of the Services (or use of the Services) infringes any Intellectual Property Rights or Moral Rights of any person, the Customer must: (a) promptly notify Scenario Entity in writing; (b) not make any admissions or take any action in relation to the claim without Scenario Entity’s written consent; (c) permit Scenario Entity control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and (d) cooperate with, assist and act at all times in accordance with the reasonable instructions of Scenario Entity, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.

12. Customer Content

The Customer retains all right, title, and interest in Customer Content. The Customer hereby grants Scenario Entity and Scenario Entity‘s licensors and third party service providers (as the case requires) a non-exclusive, royalty-free, sub-licensable, worldwide right to host, run, and reproduce Customer Content solely for the purpose of enabling the Customer’s use of the Services. Without the Customer’s permission, Scenario Entity will not access, use, or disclose Customer Content except as reasonably necessary to support the Customer’s use of the Services, respond to the Customer’s requests for Customer support, or troubleshoot the Customer’s subscription or for any other purpose authorised by the Customer in writing. If the Customer accesses the Services with an application provided by a third party, Scenario Entity may disclose Customer Content to such third party as necessary to enable interoperation between the application, the Services, and Customer Content. Scenario Entity may disclose Customer Content if required to do so by law or regulation or by order of a court or other government body, in which case Scenario Entity will reasonably attempt to limit the scope of disclosure. The Customer must ensure that Customer Content is suitable for use with the Services.

Upon termination of this SaaS Agreement, Scenario Entity will make Customer Content available to the Customer on request for a period of 30 days unless the Customer requests a shorter window of availability or Scenario Entity is legally prohibited from doing so. Thereafter, the Customer’s right to access or use Customer Content with the Services will end, and Scenario Entity will have no further obligations to store or return Customer Content. The Customer acknowledges and agrees that Scenario Entity has no obligation to make the Customer Content available in any particular format.

The Customer indemnifies Scenario Entity against all costs and liability incurred by Scenario Entity as a result of Scenario Entity‘s possession, processing, use or other handling of any Customer Content, documentation or records, except to the extent that such costs and liability arise as a result of Scenario Entity’s breach of this SaaS Agreement.

Scenario Entity may remove or delete any portions of Customer Content if there is reason to believe that uploading Customer Content to, or using it with, the Services materially violates this SaaS Agreement. If reasonable under these circumstances, Scenario Entity will notify the Customer before removing Customer Content.

13. Transfer

The Customer must not assign, novate, charge or otherwise deal with this SaaS Agreement without the prior written consent of Scenario Entity in Scenario Entity’s absolute discretion, such consent not to be unreasonably withheld. For the purposes of this clause 13, a change in company ownership is deemed to be an assignment, being a change to ownership of more than 50% of the voting shares of the Customer, or a change in the ability to control the casting of more than 50% of the maximum number of votes at a general meeting of the Customer, or a change in the ability to control the composition of the Customer’s board of directors. All access to the Software by the Customer must immediately cease. Any transfer of this SaaS Agreement to another party terminates the Access Right, access to and use of the Services, and all other associated benefits of the Customer under this SaaS Agreement.

Scenario Entity may at any time in its absolute discretion assign, novate, charge, sub-contract or otherwise deal with this SaaS Agreement and the Software and any of its rights or obligations arising under or in relation to this SaaS Agreement and the Services.

14. Indemnity

The Customer indemnifies Scenario Entity and keeps Scenario Entity indemnified from and against all actions, claims, damages, costs and expenses (including legal costs on a solicitor and own client basis) that arise directly or indirectly out of: (a) the malicious or negligent access to or use of the Services by the Customer or its directors, officers, agents, employees or contractors; (b) any intentional or reckless breach of this SaaS Agreement by the Customer, but not a breach resulting from an error of judgment or mistake made in good faith; or (c) the wilful, illegal, negligent or fraudulent act, error or omission of the Customer or its directors, officers, agents, employees or contractors.

15. Limited Warranty and Liability

To the full extent permitted by Commonwealth, State, Territory or other law or laws applicable to this SaaS Agreement, any conditions or warranties imposed by such legislation are hereby excluded. Insofar as liability under or pursuant to any legislation, whether of Commonwealth, State, Territory or other government, may not be excluded, such liability is limited to, at Scenario Entity’s sole discretion: (a) replacement of any defective Services; (b) repair, correction or a workaround of defects in the Services; or (c) return of the Service Fees paid by the Customer for the Services provided that the Customer ceases to access or use the Services, and clears any client-side data cache derived from the terminated Services.

To the extent permitted by law, the Services are provided “as is” without warranty of any kind. The Customer acknowledges that no promise, representation or warranty or undertaking has been made or given by Scenario Entity or any person or company on its behalf in relation to the profitability of or any other consequences or benefits to be obtained from the delivery, access to or use of the Services. The Customer has relied upon their own skill and judgement in deciding to use and access the Services.

Except as and to the extent that it is hereinbefore provided and to the maximum extent permitted by law, under no circumstances shall Scenario Entity or any related company be liable for: (a) any loss, damage or injury arising from the access to or use of the Services or any failure by Scenario Entity or any related company to perform any obligation or observe any terms of this SaaS Agreement; or (b) any indirect, consequential or incidental loss, damage or injury, including any loss of profits, loss of revenue, loss of opportunity, loss of data, loss of time, loss of anticipated savings, loss of business reputation or future reputation, loss of production and loss of or damage to goodwill.

To the extent permitted by law, Scenario Entity’s total cumulative liability under this SaaS Agreement from all causes of action of any kind, including but not limited to contract, tort (including negligence), strict liability, breach of warranty, misrepresentation or otherwise, is limited to the Service Fees paid by the Customer in the 12 months prior to the first claim.

16. Discontinuation of Services

17. Disputes

Any dispute arising out of or relating to this SaaS Agreement that cannot be settled through negotiation shall be settled by mediation: (a) if the Customer’s registered address is in Australia, in Brisbane, Australia in accordance with the Institute of Arbitrators and Mediators of Australia Mediation Rules (current as at the date of the dispute); or (b) if the Customer’s registered address is outside Australia, in Hong Kong in accordance with the Hong Kong International Arbitration Centre Mediation Rules (current as at the date of the dispute). The parties must comply with this clause prior to commencing proceedings, except where a party seek urgent interlocutory, injunctive or declaratory relief.

18. Applicable Law

Unless otherwise restricted by law, the Customer agrees that this SaaS Agreement shall be construed, interpreted and governed by: (a) if the Customer’s registered address is in Australia, the laws of Queensland, Australia; or (b) if the Customer’s registered address is outside Australia, the laws of Hong Kong, without regard to the laws governing conflicts of law. If any action is brought by either party against the other regarding any subject matter of this SaaS Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation. The Customer further agrees that any claim relating to this SaaS Agreement shall be brought in the courts of competent jurisdiction in the State of Queensland, Australia, or Hong Kong, as the case requires.

19. General Terms

If any term or part of any term of this SaaS Agreement is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the term (or where possible, the offending part) is to be severed from this SaaS Agreement without affecting the enforceability, validity or legality of the remaining terms (or parts of those terms) which will continue in full force and effect.

A right created by this SaaS Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

This SaaS Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.

Each party must promptly execute all documents and do everything necessary or desirable to give full effect to this SaaS Agreement.

The expiration or termination of this SaaS Agreement does not affect any right that has accrued to a party before the expiration or termination date.

Any indemnity or any obligation of confidence under this SaaS Agreement is independent and survives termination or expiration of this SaaS Agreement. Any other term by its nature intended to survive termination or expiration of this SaaS Agreement survives termination or expiration of this SaaS Agreement, including clauses 2, 4, 11, 12, 14, 15, 18, 19 and 20.

All notices, demands, consents, approvals, requests or other communication given in connection with this SaaS Agreement (“notice”) must be given in English and in writing and may be given by personal delivery, certified mail, facsimile, email or any other customary means of communication addressed to the recipient at the address for that party appearing in the FIA, this SaaS Agreement, Proposal and/or Online Certificate of Authenticity, or any new address as may be notified by a party to the other party as its new address for service. Notices given pursuant to this SaaS Agreement shall be effective on the date on which received by the addressee.

Scenario Entity may vary this SaaS Agreement at any time by providing 30 days’ prior written notice to the Customer for the following reasons: (a) a change in relevant laws, policy or industry code or practice; (b) a change to the terms and conditions of any agreement with Scenario Entity’s relevant licensors or third party service providers; (c) a change to the Service Fees, including due to an increase in charges to Scenario Entity by third party licensors and service providers; and/or (d) for any other reason. Customer will be deemed to accept the updated SaaS Agreement as varied within 30 days of receipt of such notice, and must continue to perform its obligations in accordance with the SaaS Agreement as varied. Subject to the foregoing, this SaaS Agreement may not be varied except by a written document executed by all parties.

20. Entire Agreement and Precedence

This SaaS Agreement, together with any FIA, Proposal and Online Certificate of Authenticity in connection with this SaaS Agreement, sets forth the entire agreement between Scenario Entity and the Customer with respect to all matters covered herein. The documents comprising this SaaS Agreement shall be read in the order specified in the FIA, and otherwise in the following order of precedence: (a) the FIA; (b) the terms and conditions of this SaaS Agreement; (c) the Online Certificate of Authenticity; (d) the Proposal; and (e) any document referred to in the Proposal. This SaaS Agreement supersedes and excludes all other terms and conditions and any prior representations, statements, promises, agreement, undertakings, or implications, whether made in writing or orally and whether between Scenario Entity and the Customer or otherwise.