1.1 The definitions in this clause apply in this agreement.
Confidential Information: means all information not in the public domain disclosed (verbally, visually, through samples, electronically or in writing) and shall include, but not be limited to, information in the form of, or relating to, systems, products, specifications, drawings, designs, know-how, models, photographs, prototypes, memoranda, all data, manufacturing methods and techniques, customer and/or supplier information, quality control and test methods and data, costs and pricing, financial information, marketing plans, business plans, sales data, and product applications either non-public, confidential or proprietary in nature.
Customer Data: the data inputted by the Customer, users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services and any data generated by, or derived from the Customer’s use of the Services, whether hosted or stored within the Services or elsewhere.
Data Processing Agreement: the data processing agreement entered into between the parties as applying in relation to the provision of the Services and effective from the Effective Date.
Documentation: the document(s) made available to the Customer by the Supplier either directly supplied or made available online via http://go.solarplus.co or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Services: the subscription services provided by the Supplier to the Customer under this agreement via http://go.solarplus.co or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the Services.
Support Services Policy: the Supplier’s policy for providing helpdesk support in relation to the Services as either directly supplied or as made available at http://go.solarplus.co or such other website address as may be notified to the Customer from time to time.
2. SUBSCRIPTION
2.1 This agreement shall commence on the Effective Date and shall continue for the Subscription Term (as set out in the Key Terms) unless terminated in accordance with this Agreement. The parties may mutually agree to extend the Subscription Term (including on a monthly or annual basis). The parties agree to the fees and special conditions as set out in the Key Terms.
2.2 Should the Customer exceed the specified quote kW volume limit for the Customer’s plan in any monthly period the Customer may be charged overage fees as specified in the Key Terms. The Customer is responsible for monitoring quote volume and upgrading to another plan (as available on http://go.solarplus.co) to avoid overage fees. If the overage exceeds 20% above the monthly allowance over a three month average, an automatic upgrade of the subscription plan may be implemented.
2.3 The parties confirm that the Customer will pay the Subscription Fee and other such agreed fees via credit card or, if on an annual plan, optionally by bank deposit for the current Subscription Term. The Supplier will only charge the Customer’s credit card for any further fees where agreed or aligned with the subscription renewals.
2.4 The Supplier, in its sole discretion and at any time, may modify the standard fees for the Services, provided any fee change will become effective at the end of the then current Subscription Term. The Supplier will provide the Customer with reasonable prior written notice of any change in fees to give the Customer the opportunity to consider whether to extend the Subscription Term before such change becomes effective. The Customer’s continued use of the Services after the fee change comes into effect constitutes the Customer’s agreement to pay the modified Subscription fee amount.
2.5 Except when required by law or as otherwise provided in this agreement, paid fees are non-refundable.
3. GRANT OF LICENSE
3.1 The Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence to permit the number of users (as set out in the Key Terms) to use the Services and the Documentation during the Subscription Term. The Customer agrees to ensure to the best of their ability that no person other than the users can access or use the Services. If the Customer wishes to add additional users, the Customer is responsible for upgrading to another plan (as available on http://go.solarplus.co).
3.2 The Customer agrees to the following:
(a) When the Customer creates an account with the Supplier, the Customer will provide the Supplier with contact information that is accurate and complete.
(b) The Customer is responsible for safeguarding the Customer’s password(s) that the Customer uses to access the Services. The Customer agrees not to disclose their passwords to any third party and to be fully responsible for activities that relate to the Customer’s account or passwords.
(c) The Customer will notify the Supplier promptly upon becoming aware of any breach of security or unauthorised use of the Customer’s account.
(d) The Customer may not reverse engineer, decompile, or disassemble the Software.
(e) The Customer may not rent, lease, or lend the Software.
(f) The Supplier may provide you with support services related to the Software. Any supplemental software code provided to you as part of the support services shall be considered part of the Software and subject to the terms and conditions of this agreement.
(g) The Customer must comply with all applicable laws regarding use of the Software.
4. SERVICES
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am Victoria, Australia time; and
(b) unscheduled maintenance performed outside normal business hours (in Victoria, Australia), provided that the Supplier has used reasonable endeavours to give the Customer at least 6 normal business hours’ notice in advance.
If the availability of the Services drops below 99.5% (excluding planned maintenance) , the Customer may terminate this agreement on notice in writing to the Supplier (and the Supplier will refund any fees for unused Services on a pro rata basis). For the avoidance of doubt, availability of the Services is not a reference to helpdesk support as set out in the Support Services Policy.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during normal business hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided.
4.4 The Supplier’s website may contain links to third party web sites or services* that are not owned or controlled by the Supplier. The Supplier has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. The Customer acknowledges that the Supplier will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. The relevant third parties that may be linked are as set out in the Schedule or as otherwise notified to the Customer with prior written notice.
5. INFORMATION SECURITY AND DATA PROTECTION
5.1 The Supplier will (and warrants and represents that it will) at all times maintain appropriate administrative, physical, and technical safeguards for the security of its network and information systems (including in relation to protecting the security, confidentiality and integrity of Customer Data) in accordance with:
(a) best practice for the provision of software as a service and customer relationship management IT services;
(b) the information provided by the Supplier to the Customer in connection with data protection and information security.
5.2 Those safeguards in clause 5.1 will include, but will not be limited to, the Supplier ensuring:
(a) measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users);
(b) the Services do not contain any virus or other malicious code.
5.3 Further, the terms of the Data Processing Agreement entered into by the parties will apply in relation to the provision of the Services.
6. SUPPLIER’S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed in accordance with the Documentation and with the highest level of care, skill and diligence in accordance with best practice in the Supplier’s industry.
6.2 The Supplier warrants and undertakes that:
(a) it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement;
(b) it will comply with all applicable laws and regulations with respect to its obligations under this agreement;
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated in this agreement, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
7.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
8. CONFIDENTIALITY AND POLICIES
8.1 Each party shall maintain as secret and confidential, at all times, all Confidential Information and undertakes to use the same exclusively for the purposes of this agreement, and disclose or provide Confidential Information only to those of its agents, advisors, affiliates and sub-contractors to whom and to the extent that such disclosure is reasonably necessary for the purposes of this agreement. A party shall ensure that any agents, affiliates and sub-contractors to whom any disclosure is made in accordance with this clause are made aware of and subject to the obligations under this clause. A party shall effect and maintain adequate security measures to safeguard the Confidential Information from access or use by unauthorised persons and to keep the Confidential Information under that party’s control, such measures being at least to the same standard of care as used by the party for the party’s own confidential information (but in any case to a reasonable standard of care).
8.2 The provisions of this clause shall not apply to Confidential Information that a party can conclusively demonstrate by written evidence:
(a) is subsequently disclosed to that party, without any obligation of confidence, by a third party who has not derived it directly or indirectly from that party;
(b) is or becomes generally available to the public through no act or default of that party; or
(c) is required to be disclosed to the courts of any competent jurisdiction, or to any government regulatory agency or financial authority or in accordance with the requirements of any applicable stock exchange.
8.3 Neither party shall use the other party’s confidential information for any purpose except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement.
8.4 The Supplier shall comply with the Customer’s “Supplier Code of Conduct” Policy provided by the Customer to the Supplier.
9. INDEMNITY
9.1 The Supplier shall defend the Customer, the users, its affiliates and subsidiaries and its and their officers, directors and employees against any and all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s intellectual property rights in any jurisdiction.
10. DISCLAIMER
10.1 Except as expressly and specifically provided in this agreement:
(a) the Customer’s use of the Services is at the Customer’s sole risk;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
(c) the Services and the Documentation are provided to the Customer on an “as is” basis;
(d) the Supplier does not warrant that a) the Services will function uninterrupted, error-free or available at any particular time or location; b) any errors or defects will be corrected; or c) the results of using the Service will meet the Customer’s requirements.
11. LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in this agreement, the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use.
11.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) under clauses 5, 6.2, 8 and 9.
11.3 Subject to clauses 11.1 and 11.2:
(a) in no event will either party be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage;
(b) a party’s total aggregate liability to the other in respect of anything directly or indirectly connected with this agreement will be limited to the total fees paid or payable in connection with this agreement.
11.4 Neither party will be held liable for failure to perform its obligations under this agreement due to circumstances beyond its control, including but not limited to acts of God, fires, floods, epidemics, pandemics, strikes, lockouts, riots, war, terrorism, or government action. The affected party shall promptly notify the other party in writing and use reasonable efforts to mitigate the impact on its performance.
12. TERMINATION
12.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
12.2 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Supplier shall provide all assistance and information requested by Customer and shall co-operate with Customer and any replacement provider of the Services to facilitate a smooth transition from the Supplier; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
(e) all provisions of this agreement which by their nature should survive termination shall survive termination, including, without limitation, intellectual property, confidentiality, indemnity, disclaimers and limitations of liability
12.3 On termination of this agreement for any reason, the Supplier:
(a) shall make no further use of the Customer Data;
(b) at the written direction of the Customer, the Supplier shall destroy or return the Customer Data or, in the case of any Customer Data in electronic form, delete such Customer Data; and
(c) the Supplier shall preserve all Customer Data in its possession until it has received any such instructions.
13. VARIATION
13.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14. WAIVER AND SEVERANCE
14.1 No failure or delay by a party to exercise or enforce any right or provision of this agreement will be considered a waiver of those rights. If any provision of this agreement is held to be invalid or unenforceable by a court, the remaining provisions of this agreement will remain in effect.
15. ENTIRE AGREEMENT
15.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
16. ASSIGNMENT
16.1 Neither party may assign any of its rights or obligations
16.2 hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this agreement, without the other party’s consent to an affiliate or subsidiary or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this agreement upon written notice. In the event of such a termination, the Supplier will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17. GOVERNING LAW
17.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Victoria, Australia.
18. JURISDICTION
18.1 Each party irrevocably agrees that the courts of Victoria, Australia shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
* Third Party Links
For the purposes of clause 4.4, third parties consist of:
· Any integration partners, being Google calendar, Hubspot, Xero and any other integration partners otherwise notified to the Customer with prior written notice;
· Any industry partner who may provide reference documents for products and services, being inverter/module manufacturer data sheets, warranty documents, any finance provider application link should the Customer choose to access such finance provider options, all of which have been notified to the Customer with prior written notice;
· Any owner of a website the Supplier may refer to in the “Help Centre” on the Supplier’s website, for the purposes of education or industry reference; and
· Any other third party otherwise notified to the Customer with prior written notice
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