End User Subscription Agreement (EUSA)

**By accessing or using the cloud-based data platform and related services (“Services”) provided by Platformity Pty Ltd (“Platformity”), the end user (“Customer”) agrees to the terms of this End User Subscription Agreement (“Agreement or EUSA”). This Agreement forms the legal contract directly between Platformity and the Customer concerning the use of the Services, notwithstanding the Customer’s purchase of the service access from Secure Agility Pty Ltd (“Reseller”).  The EUSA is in addition to the provisions of the agreement between Customer and Reseller and is incorporated into that agreement by reference.**

**1. Acceptance:** Use of the Services by the Customer, constitutes acceptance of this Agreement without requirement for signature.

**2. Contractual Relationships:**

    a) The purchase and billing relationship is between the Customer and the Reseller.

    b) The service usage rights and obligations are governed by this Agreement between the Customer and Platformity.

**3. Subscription Terms:**

  1. The subscription term, renewal, and termination will be specified in the order given by the Customer to the Reseller, subject to this Agreement.
  2. License and Right to Use. During the subscription period and subject to the Customer’s continuous compliance with this EUSA, Customer is granted a limited, non-exclusive, non-transferable license to access and use the Services and platform, for its internal use during the subscription period, in accordance with this EUSA and the contract with the Reseller, and subject to the usage limits set out in the order.
  3. Use by Third Parties. The Customer is responsible for all actions of its authorized users and for those authorised users’ compliance with this EUSA.
  4. The Customer must keep all account information current and protect its account information, passwords, and other login credentials; and promptly notify Platformity and the Reseller of any known or suspected unauthorized use of or access to the account.
  5. Usage data.  Provision of the Service is subject to the usage limits specified in the order.  Platformity may share the Customer’s usage data with the Reseller to manage the provision of the Service and the calculation of any overage fee.

4.  Use Restrictions

The Customer must not:

  • transfer, sell, sublicense, monetize or make the functionality of the Service available to a third party;
  • remove, modify, or conceal any copyright, proprietary notices or trade mark;
  • except to the extent permitted by applicable law, reverse engineer the Service to build a competitive product or service or copy any ideas, features, functions or graphics of the Service;
  • investigate or determine whether the intellectual property of the Service is within the scope of any patent;
  • use the Service to store or transmit Malicious Code, nor to facilitate an attack or disruption to the Service, such as a denial-of-service attack, nor to transmit material in breach of applicable laws. Malicious Code means code, files, scripts, agents or programs intended to disable or impede the normal operation of, or provide unauthorized access to, networks, systems, software or Services;
  • conduct penetration testing on the Service; or
  • use the Service in a manner to avoid the usage limits set out in the order.

**5. Fees and Payment:** The Customer’s financial arrangements for the Services are set out in the agreement between the Customer and the Reseller.

**6. Intellectual Property Rights:** The Customer acknowledges and agrees that all intellectual property rights in the Services are owned by Platformity. The Customer is granted a license to access and use the Services for internal business purposes only.  Platformity may use any feedback the Customer provides regarding the Service in its business operations.

7. Third Party Infringement Claims.

7.1 Platformity will defend the Customer against a third party’s claim that the Customer’s permitted use of the Services infringes that third party’s patent, copyright, or registered trademark in Australia. Platformity will indemnify the Customer against the final judgment made by a court of competent jurisdiction or any settlement arising out of the claim, provided that the Customer:

  • (a) promptly notifies Platformity in writing of the claim;
  • fully cooperates with Platformity in the defence of the claim; and
  • grants Platformity the exclusive right to conduct the defence and settle the claim

Platformity has no obligation to reimburse legal fees and costs incurred prior to receiving notification of the claim.

7.2  Additional Remedies. If the Service becomes the subject of a claim, Platformity may at its sole option either (a) procure for the Customer the right to continue using the Services, or (b) replace or modify the Service to be non-infringing with equivalent functionality. If in Platformity’s reasonable opinion these alternatives are not available, Platformity may terminate the Customer’s rights granted under this EUSA and refund the Customer a prorated portion of the fee for the remainder of the unexpired subscription period.

7.3 No Obligation. Platformity has no obligation regarding a claim based wholely or partly on:

  • use of the Service not in accordance with the Platformity’s documentation
  • modification of the Service other than by Platformity;
  •  the combination, operation, or use of the Service with hardware or software not provided by Platformity.

7.4 Sole Remedy This clause states Platformity’s entire obligation and Customer’s sole remedy regarding any claim of infringement of intellectual property rights.

7.5 Customer Indemnity.  The Customer will defend and indemnify Platformity from and against any claim brought by a third party against Platformity arising from or related to the Customer’s breach of this EUSA.

8.  Compliance with Laws. Each party will comply with all applicable laws and regulations.

9. Confidentiality.  Confidential Information means non-public proprietary information of the disclosing party (Discloser) obtained by the receiving party (Recipient) whether orally or in writing, which is marked “confidential” or by its nature should reasonably be considered confidential.   The Recipient must protect and, except with the Discloser’s prior written consent, not disclose or use any of the Discloser’s Confidential Information other than as intended by this EUSA.  The Recipient may disclose Confidential Information on a need-to-know basis to its employees and related bodies corporate who are subject to the same confidentiality obligations.  The obligations of confidentiality do not apply to information which (i) is or becomes public knowledge without breach of obligation to the Discloser; (ii) was previously known to the Recipient without breach of obligation to the Discloser; or (iii) was independently developed by the Recipient.  The Recipient is not prevented from disclosing Confidential Information if compelled by law or regulation to do so.

10.  Third Party Beneficiaries. This EUSA does not grant any right or cause of action to any third party.

11. Assignment and Subcontracting. Except as stated, neither party may assign or novate this EUSA in whole or in part without the other party’s express written consent.  Platformity may:

  1. by written notice assign or novate this EUSA in whole or in part to a related body corporate, or otherwise as part of a sale or transfer of any part of its business; or
  2. subcontract any performance associated with the Service to third parties, provided Platformity remains responsible for the Services and its obligations under this EUSA.

12. Termination

  1. Either party may terminate this EUSA if the other party fails to remedy a material breach within 14 days of notice.
  2. Platformity may immediately terminate this EUSA it has not received payment of the fees from the Reseller.
  3. Upon termination Platformity will cease providing the Services.
  4. If this EUSA is terminated due to Platformity’s material breach, Platformity will refund the prorated portion of fees prepaid for the Service beyond the date of termination.

13  Survival.  Provisions regarding confidentiality, intellectual property rights, usage rights, restrictions, indemnities, liability and governing law survive termination.

**14. Governing Law:** This Agreement is governed by the laws in force in New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales and the courts competent to hear appeals from them .

**15. Amendments:** Platformity may periodically amend the terms of this Agreement or the Services, with notice to the Customer made available at [insert Platformity’s URL].   Continued use of the Services after a revised EUSA has been published, or the Customer notified of change to the Services, constitutes the Customer’s acceptance of those amendments.

**16. Limitation of Liability:** To the extent permitted by law:

  1.  Platformity is not liable for any indirect, consequential, special or exemplary loss, damage or expense, or loss or corruption of data or interruption or loss of business; or loss of revenues, profits, goodwill or anticipated sales or savings.
  2. Without affecting the Customer’s rights under the Australian Consumer Law (ACL), Platformity’s maximum aggregate liability for any claim related to this Agreement or the Services is limited to the fees it received for the Services in the 12 months before the liability arose.
  3. Platformity expressly disclaims all warranties and guarantees of any kind, express or implied, including without limitation any warranty, guarantee or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that the Service will be secure, uninterrupted or error-free.  If the Customer is a consumer under the Australian Consumer Law, this disclaimer does not apply and the Customer is entitled to exercise the rights and remedies granted by statute

17 Entire agreement. This EUSA states the entire agreement between the Customer and Platformity and supersedes all prior agreements, understandings or representations, written or oral, concerning its subject matter.  The Customer represents and warrants to Platformity that it does not rely on any representation or warranty, express or implied, regarding the subject matter of the EUSA, other than those stated here.  No terms or conditions in any order or other document may add to or vary this EUSA, and are expressly excluded.

**By using the Services, the Customer acknowledges they have read, understood, and agree to be bound by this Agreement.**