Subscription Agreement

This Subscription Agreement (Agreement) applies to the Customer's and each Authorised User's access and use of the Easy Agile Products, whether a Customer purchases Products directly from Easy Agile, through the Atlassian Marketplace, through an authorised Reseller or otherwise. The Customer acknowledges and agrees that its use of and access to the Products is conditional upon the Customer's acceptance of this Agreement.

If the Authorised User is using the Products on behalf of a Customer, the Authorised User represents and warrants that they are authorised by the Customer to accept the terms of this Agreement, both in their personal capacity and on behalf of the Customer.

If the Customer does NOT agree to the terms of this Agreement or the Authorised User does not have authority to accept the terms of this Agreement on behalf of the Customer, do NOT click the "I Agree" button and/or otherwise access or use the Products.

1. Definitions

a. In this Agreement, unless the context otherwise requires:
i. API means application programming interface;
ii. Applicable Data Protection Laws means the Privacy Act, the GDPR, and any other applicable federal and state privacy legislation governing the collection, use, disclosure, storing, processing and all similar handling of Personal Data;
iii. Atlassian means Atlassian Pty Ltd ABN 53 102 443 916;
iv. Atlassian Marketplace means the Atlassian Marketplace, an online marketplace for cloud and downloadable software applications, plugins and extensions available at https://marketplace.atlassian.com/;
v. Authorised User means a specific individual for whom the Customer has paid the required Fees and whom Customer designates through the applicable Product to access and use the Products;
vi. Beta Version has the meaning given to it in clause 4(b)(iii);
vii. Business Day means a day that is not a Saturday or Sunday, or a public holiday or bank holiday in Sydney, NSW, Australia;
viii. Confidential Information of a party (the Discloser) means information of or relating to the Discloser, or relating to the business, operations or affairs of the Discloser. It includes:
1. financial, taxation and accounting matters;
2. trade secrets, know-how, technology, techniques, processes, inventions, codes, ideas or concepts, and technical and product information, even if not reduced to material form; and
3. in the case of Easy Agile, in addition to the above, the Products and Documentation, and any Intellectual Property Rights, the underlying technology, and any performance information relating thereto;

ix. Customer means the individual or legal entity specified in the Order, who authorises each Authorised User to access and use the Products on its behalf;
x. Customer Data means any content, materials, data, information that Authorised Users enter into the Products or that Customer derives from its use of and stores in the Products. Customer Data and its derivatives will not include Easy Agile's Confidential Information;
xi. Documentation means any user guides, manuals, media and other materials related to the Products which are made available to Customer and Authorised Users, either in print and/or online or in another format, intended to assist Customer and Authorised Users to access or use the Products;
xii. DPA means the Easy Agile Data Processing Addendum entered between Easy Agile and Customer;
xiii. Easy Agile means Easy Agile Pty Ltd ACN 605 474 977;
xiv. Effective Date means the date that the Customer or the Authorised User signifies their acceptance of the terms and conditions in this Agreement by first accessing or using the Products;
xv. Fees means the amounts payable by the Customer to Easy Agile, Atlassian or a Reseller, as applicable, for access to and use of the Products, and any other charges, as set out in the Order and/or on the Easy Agile Website;
xvi. GDPR means the European Union General Data Protection Regulation (EU) 2016/679, and in respect of the United Kingdom the Data Protection Act 2018 and the EU GDPR as saved into United Kingdom law by virtue of Section 3 of the United Kingdom's European Union (Withdrawal) Act 2018;
xvii. GST means any tax, levy, charge or impost implemented under the GST Act;
xviii. GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
xix. Harmful Code means viruses, worms, trojan horses, spyware, malware, backdoor, and other computer programs and software code that harm a computer or a computer program, or operate in some other harmful or destructive way to hardware, software, data, or communications systems;
xx. Hosted Services means Easy Agile’s Software provided in a hosted or cloud-based environment;
xxi. Intellectual Property Rights includes any copyright, including but not limited to any images, icons, text files, pdfs or other static non-code assets contained within the Products and Documentation, design, patent, trade mark, trade, business, company or domain name; and know how, inventions, processes, confidential information (whether in writing or recorded in any form); and any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields;
xxii. Licence Term means the time period during which the Product licences shall be in effect as specified in an Order, including any renewal periods (subject to earlier termination pursuant to this Agreement);
xxiii. No-Charge Products are Products made available to Customer at no charge;
xxiv. Order means an order for Products placed with Easy Agile, Atlassian or a Reseller, setting out the Scope of Use and any other commercial terms applicable to the Customer's and each Authorised User's access to and use of the Products;
xxv. Payment Terms means the payment terms of Easy Agile, Atlassian or a Reseller, as applicable, as set out in the Order and/or in the relevant Tax Invoice;
xxvi. Personal Data means any information that relates to an identified or identifiable natural person (Data Subject), as defined under Applicable Data Protection Law. To the extent applicable, the definition of “Personal Data” includes “Personal Information” as defined under the Privacy Act;
xxvii. Products means the Software (including any Beta Versions), Hosted Services, Support Services and No-Charge Products;
xxviii. Privacy Act means the Australian Privacy Act 1988 (Cth) and the Australian Privacy Principles, as amended from time to time;
xxix. Privacy Policy means Easy Agile's Privacy Policy;
xxx. Reseller means an individual or business authorised by Easy Agile to resell the Products;
xxxi. Scope of Use means the scope of use of the Products, as specified in the Order, which may include:
1. the defined number of installations, the number of Authorised Users, the number of unique data set platforms, and/or other defined resource utilisation limitations;
2. storage or capacity (for Hosted Services);
3. numbers of licenses, copies or instances (for Software), and/or
4. other restrictions or billable units;

xxxii. Software means Easy Agile’s commercially available downloadable software products licensed for a Fee, or made available at no charge;
xxxiii. Standard Use Software means Easy Agile’s Software provided for use on-premise in the Customer's environment, i.e. behind the Customer's firewall environment;
xxxiv. Support Services means support services provided by Easy Agile relating to the Software or Hosted Services;
xxxv. Tax means a tax, levy, duty, charge, deduction or withholding (including any value added tax or goods and services tax), regardless of how it is described, that is imposed by law or by a government agency, together with any related interest, penalty, fine or other charge;
xxxvi. Tax Invoice has the meaning under the GST Act;
xxxvii. Third Party Product means any product, including software, in which proprietary rights are owned by some-one other than Easy Agile or Customer; and
xxxviii. Website means Easy Agile's website, available at https://www.easyagile.com/.

2. Orders

a. The Customer can place Orders for Products either directly with Easy Agile, through the Atlassian Marketplace or with an authorised Reseller.

b. Any registration information that the Customer provides must be accurate, current and complete. The Customer must also update its information so that Easy Agile may send notices, statements and other information to the Customer by email or through its account.

c. An Order will specify the Scope of Use for the Products.

d. The Customer may increase the number of Authorised Users permitted to access the Product by placing a new Order or, in some cases, making a request directly through the Product.

3. Grant of license

a. In consideration of the payment of the Fees, Easy Agile grants to Customer an annual or monthly subscription for a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Products (other than No-Charge Products) and Documentation specified in an Order solely for the Customer's internal business operations and for use by Authorised Users.

b. The Products are licensed, not sold, and no ownership right is conveyed to Customer or its Authorised Users, irrespective of the use of terms in this Agreement such as “purchase” or “sale”. Customers and Authorised Users may not sell, transfer or convey the Software to any third party without Easy Agile’s prior express written consent. Easy Agile reserves all rights not expressly granted to the Customer in this Agreement.

c. A licence granted under this Agreement begins on the Effective Date and continues for the Licence Term. Unless otherwise specified in the Order, the Licence Term will automatically renew for periods equal to the initial Licence Term set out in the Order, unless either Easy Agile or the Customer gives notice to the other party at least 30 days prior to the end of the initial Licence Term (or the then-current term) of its intention not to renew the licence.

d. If Customers purchase through a Reseller, Customer's license rights shall be as stated in the Order placed by Reseller for Customers, and the Reseller is responsible for the accuracy of any such Order.

‍4. Use of the Products

a. The Customer, and the Customer will ensure that each of its Authorised Users with respect to its use of the Products and Documentation will not:
i. disassemble, decompile, reverse-engineer, copy, translate or make derivative works;
ii. transmit any content or data that is unlawful or infringes any Intellectual Property Rights;
iii. breach any law, including Applicable Data Protection Law,
iv. circumvent or endanger the Products' operation or security, or introduce any Harmful Code; or
v. use the Products contrary to any license restrictions imposed under clause 3.

b. In addition to the above, in relation to the following, as applicable:
i. Standard Use Software. The Customer may only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Customer, or the Customer's third party service providers so long as the Customer remains responsible for their compliance with the terms and conditions of this Agreement.
ii. Hosted Software. The Hosted Software is available through the Atlassian Marketplace and this Agreement are “Vendor Terms” as referred to in the Atlassian Marketplace Terms of Use available at https://www.atlassian.com/licensing/marketplace/termsofuse and that the Customer's access to the Products may be subject to additional terms.
iii. No-Charge Products. The Customer's use of No-Charge Products is subject to any additional terms specified by Easy Agile and Easy Agile may terminate the Customer's right to use No-Charge Products at any time and for any reason in its sole discretion, without liability to the Customer.
iv. Beta Versions. The Customer understands that any pre-release and beta products (Beta Versions) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. Easy Agile makes no promises that any Beta Versions will ever be made generally available. In some circumstances, Easy Agile may charge a fee in order to allow the Customer to access Beta Versions, but the Beta Versions will still remain subject to this paragraph.
v. Documentation. If the Products are provided with Documentation that is available only in electronic form, the Customer may print one copy of such electronic documentation. Except for any copies of this Agreement, the Customer may not copy the printed materials accompanying the Products.

5. Support Services

a. Easy Agile may provide the Customer with online Support Services related to the Products, in its discretion and for the sole purpose of addressing technical issues relating to the use of the Products. Support Services also include access to bug fixes, patches, modifications, or enhancements (together, Releases) to the Products that Easy Agile makes generally commercially available during the support period specified below and subject to variation by Easy Agile from time to time (Support Period). When accepted by the Customer, any such Releases will be considered part of the Products and subject to the terms of this Agreement.

b. The Support Period for a Standard Use Product is concurrent with the Licence Term of the Standard Use Product and will terminate or expire with the termination or expiry of the Standard Use Product licence.

c. Use of Support Services (if any) is governed by Easy Agile’s policies and programs described in any Documentation. Any supplemental software code provided to the Customer as a part of Support Services will be considered part of the Products and subject to the terms of this Agreement.

6. Customer Data and Personal Data

a. The Customer retains all right, title and interest in and to any Customer Data.

b. The Customer is responsible for the Customer Data and Customer warrants and agrees that all Personal Data contained in the Customer Data has been collected, used and disclosed to Easy Agile in compliance with Applicable Data Protection Laws so that Easy Agile can collect, use and disclose the Customer Data in accordance with its Privacy Policy.

c. Easy Agile will comply with Applicable Data Protection Laws, including but not limited to the GDPR, in respect of any Personal Data collected, accessed, used, disclosed and otherwise handled by Easy Agile under or in connection with this Agreement. Easy Agile will collect, use, disclose, store and otherwise handle and process Personal Data in compliance with the Privacy Policy and the DPA.

d. The Customer acknowledges and agrees that Customer is responsible for maintaining backup copies of the Customer Data and that Easy Agile has the right to remove any information or material, including Customer Data, from the Products at any time in its sole discretion.

7. Interaction with Third Party Products

a. The Customer acknowledges that the Products may contain Third Party Products, including open source software, which are subject to terms and conditions of those relevant third parties and are not subject to the terms of this Agreement.

b. The Software uses, requires and depends on various third party APIs. Easy Agile disclaims any liability for any failure or limitations of these APIs or services. Atlassian, or any other API provider, may remove the API endpoints required for the Software to function properly. Easy Agile disclaims any liability for the consequence of such actions by such third parties.

c. If the Customer uses the Products in conjunction with any Third Party Products, the Authorised User acknowledges and agrees that:
i. any issues relating to the Customer's access to and use of those Third Party Products, or relating to any exchange of instructions, data or information between the Customer and the third party or the Third Party Product, are solely between the Customer and the applicable third party and are not matters for which Easy Agile is responsible or liable;
ii. Easy Agile does not warrant or support any Third Party Products or any interface between them and the Products; and
iii. Easy Agile is not liable for any disclosure, modification or deletion of Customer Data or Personal Information resulting from access to or use of those Third Party Products or any exchange of data with them.

8. Modifications and access to the Products

a. The Customer acknowledges that Easy Agile and/or Atlassian may modify the Products, including to add or remove features and functionality from time to time, and any changes will be communicated to the Customer through the Products.

b. Easy Agile may, at its own discretion, temporarily suspend the Products for the purpose of system repair, maintenance or improvement. When it is reasonably practicable under the circumstances, Easy Agile will provide the Customer prior notice of any system maintenance, the time of its commencement, and likely duration.

c. In the event of any service outage, Easy Agile will restore Products access as soon as is reasonably practicable.

9. Fees

a. The Customer will pay the Fees and any applicable taxes as specified in a Tax Invoice issued by Easy Agile, Atlassian or a Reseller, as applicable, in accordance with the Payment Terms.

b. Easy Agile, Atlassian or a Reseller may also charge, and the Customer will pay, any costs, expenses, charges or other payments in addition to the Fees, including any excess usage charges.

c. If the Customer does not pay any invoiced amount by the due date for payment, then without prejudice to Easy Agile's rights under this Agreement or generally, Easy Agile may suspend and/or terminate the license(s) granted under this Agreement in accordance with clause 22.

10. Disputed Fees

a. This clause applies only if the Customer purchased Products directly from Easy Agile. If Products are purchased through the Atlassian Marketplace or through a Reseller, the relevant third party terms apply to disputed Fees.

b. If the Customer disputes in good faith any item on a Tax Invoice, the Customer will promptly (but no later than seven (7) days after the date of the Tax Invoice) notify Easy Agile of the disputed amounts in the Tax Invoice and its reasons for disputing the items, and Easy Agile and the Customer will use all reasonable endeavours to settle the dispute at their earliest possible convenience in accordance with clause 21.

c. The Customer must pay to Easy Agile the Tax Invoice in its entirety in accordance with the Payment Terms, and if the dispute is resolved and the parties agree, or if it is determined by a court of law that any portion of the dispute amount was not payable by the Customer, then Easy Agile will repay that portion to the Customer within seven (7) days of resolution of the dispute (unless the Customer is indebted to Easy Agile, in which case Easy Agile may set the amount payable to the Customer off against that amount).

d. If the Customer does not notify Easy Agile of a dispute in respect of an invoiced amount within the time frame specified in clause 10(b), the Tax Invoice will be deemed to be undisputed.

11. Changes to Fees

a. This clause applies only if the Customer purchased Products directly from Easy Agile. If Products are purchased through the Atlassian Marketplace or through a Reseller, the relevant third party terms apply to Fee changes.

b. The Fee amounts will remain fixed until the expiry of the Licence Term set out in the Order. Easy Agile may amend the Fee applicable to any renewal term by providing the Customer at least 30 days' prior written notice.

c. Unless the Customer terminates access to the Products under this Agreement or gives notice of its intention not to renew the licence, the revised Fee will apply to the Customer's continued access to and use of the Products from the commencement of any renewal term. The Fee (as revised) will remain fixed during that renewal term.

12. GST

a. If GST is payable on any supply made under or in relation to this Agreement, the recipient of the supply must pay the amount of GST to the supplier in addition to and at the same time as the net amount payable for the supply.

b. If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled, for any acquisition relating to that payment or reimbursement.

c. This clause is subject to any other specific agreement regarding the payment of GST on supplies.

13. Taxes

a. The parties acknowledge that the Fees (or any other amounts payable by the Customer to Easy Agile pursuant to this Agreement) may be subject to a withholding Tax in the Jurisdiction, and if and to the extent that the Fees or other amounts are subject to a withholding Tax, then:
i. the Customer will effect such deduction or withholding, and remit such Taxes to the appropriate Regulatory Authority, and provide Easy Agile with proof that it has done so;
ii. Easy Agile will use reasonable commercial endeavours to obtain the benefit of any double tax treaty, as soon as reasonably possible; and
iii. the Customer will give Easy Agile such information and assistance (including documentation evidencing its remittance of the withholding tax to the appropriate taxing authorities) as is reasonably required to enable Easy Agile to apply for and obtain the benefit of any double tax treaty, from the remittance of such withholding Tax.

14. Intellectual Property Rights

a. Nothing in this Agreement affects either party's, or any third party's, ownership of their respective Intellectual Property Rights. To avoid doubt:
i. Easy Agile retains all right, title and interest in the Products, the Documentation, and Analytics, including any modifications, improvements, developments, enhancements, adaptations or changes to the Products, the Documentation, and Analytics; and
ii. the Customer retains all right, title and interest in the Customer Data.

b. Any rights that are not expressly granted to the Customer in these terms are expressly reserved by Easy Agile.

c. The Customer grants to Easy Agile and its subcontractors a non-exclusive, royalty-free, worldwide licence to the Customer Data to:
i. provide and support the Products;
ii. develop and make improvements to the Products; and
iii. create, develop, manage, and commercialise any Analytics in accordance with clause 14(e).

d. The Customer grants to Easy Agile a non-exclusive, royalty-free, worldwide, licence to use the Customer's business names, logo and/or likeness provided during the registration for the purposes of advertising and promoting the Products, provided that:
i. the use is compliant with any reasonable guidelines that the Customer may notify in writing to Easy Agile from time to time;
ii. the business names, logos and/or likeness will remain the property of the Customer; and
iii. the use of the business names, logos and/or likeness under this Agreement is as licensee only, and any goodwill arising from that use, will accrue solely for the Customer's benefit.

e. The Customer can revoke this right at any time by submitting a written request via email to support@easyagile.com, requesting to be excluded from future Product promotional material. Requests made after purchasing may take thirty (30) calendar days to process.

f. Despite any other provisions of this Agreement, the Customer and each of its Authorised Users acknowledges and agrees that Easy Agile may aggregate anonymised or de-identified data, including such data regarding the Customer's and each of its Authorised Users usage of the Products and, potential improvements of or functioning of the Products and analytics (collectively, Analytics). As between the Customer and Easy Agile, Easy Agile will own all right, title and interest in and to such Analytics and the Intellectual Property Rights relating to them, and such Analytics are Easy Agile's Confidential Information.

g. If the Customer provides any suggestions, enhancement requests, recommendations, or other feedback to Easy Agile regarding the Products or any of Easy Agile's other products or services (Feedback), the Customer acknowledges and agrees that the rights (including any Intellectual Property Rights) in the Feedback or arising from Easy Agile's doing so will vest in Easy Agile's immediately on creation, without any obligation to pay the Customer or any of its Authorised Users for the Feedback.

h. If the Customer or any of its Authorised Users upload any content for public view in the Product's online support or knowledge base, the Customer and its Authorised Users acknowledge that such content is free of copyright and that Easy Agile may edit, redisplay or remove that content at its sole discretion at any time.

15. Third Party Claims

a. Easy Agile will defend Customer against claims brought against Customer by any third party alleging that Customer's use of the Products infringes Intellectual Property Rights. Easy Agile will indemnify Customer against all expenses, losses, damages and any costs awarded against Customer (or the amount of any settlement Easy Agile enters into) with respect to those claims.

b. The Customer authorises Easy Agile to:
i. modify the Products or replace components or parts of components, to render the Products non-infringing; or
ii. obtain for the Customer's benefit the authority to continue the access and use of the Products,
iii. however, if neither of the above can be achieved using reasonable commercial efforts, Easy Agile may terminate this Agreement (or the relevant part of it) by written notice to that effect.

c. Easy Agile's liability under the indemnity under clause 15(a) does not apply where the infringement is caused or contributed to by:
i. the Customer's breach of clause 3, 4 or 6;
ii. Easy Agile's compliance in the course of provision of the Products with specifications or written instructions issued to Easy Agile by the Customer;
iii. the combination of the Products with any Third Party Product, service or materials that is not supplied by or on behalf of Easy Agile; or
iv. the Customer's use of No-Charge Products.

d. The Customer will defend Easy Agile against claims brought against Easy Agile by any third party alleging that the Customer's use of the Products infringes their third party rights. The Customer will indemnify Easy Agile against all expenses, losses, damages and any costs finally awarded against Easy Agile (or the amount of any settlement the Customer enters into) with respect to any claims related to:
i. the Customer's or its Authorised Users breach of this Agreement;
ii. the Customer Data;
iii. the Customer's unapproved use or modification of the Software; or
iv. combination of the Software with Third Party Products.

e. The indemnities given in this clause 15(a) are conditional upon the indemnified party:
i. on becoming aware of any claim or allegation by a third party against an indemnified party alleging an infringement of their rights, promptly notifying the indemnifying party in writing, giving full particulars of any infringement, suspected infringement or alleged infringement;
ii. not entering into any settlement or compromise any such claim without the indemnifying party's prior written consent,
iii. giving the indemnifying party the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings; and
iv. providing the indemnifying party with information and reasonable assistance in conducting the defence of such a claim.

16. Confidentiality

a. Each party acknowledges the confidentiality of the other party’s Confidential Information. Neither party will gain a right, entitlement or interest in the other party’s Confidential Information, other than for the purposes contemplated by this Agreement. Each party must keep all of the other party’s Confidential Information confidential, and may only use it for the purposes of fulfilling this Agreement. However, this will not apply to information which:
i. was in the public domain when it was provided, or later enters the public domain, through no fault of the other party;
ii. the party is obliged by law to disclose, provided that it has first advised the other party of this obligation;
iii. was rightfully in the other party's possession or known to the other party prior to receipt of the Confidential Information;
iv. is rightfully obtained by the other party from a third party without breach of any confidentiality obligation; or
v. is independently developed by the other party or the other party's employees who had no access to such Confidential Information.

b. The Customer acknowledges that disclosure of Easy Agile's Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Customer or any of its Authorised Users or personnel, Easy Agile shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

17. Warranty

a. The Customer acknowledges that Products are provided on an “as is” and “as available” without representation or warranty, express or implied, and to the maximum extent permitted by law, Easy Agile expressly disclaims any liability for, and does not make any representation, warranty or guarantee that:
i. the Products will be suitable for any purpose or any particular purpose;
ii. the Products will be of merchantable quality;
iii. the use of the Products will be secure, timely, uninterrupted or bug and error-free, or are free from Harmful Code;
iv. errors or defects will be corrected;
v. the Products will meet Customer's requirements or expectations or meet any particular performance standards, including any particular uptime, response rate or download time;
vi. the Products will operate in combination with any other hardware, software, system, or data;
vii. the Products will not be affected by delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Easy Agile; and
viii. any stored data, any Customer Data and Personal Information, will be accurate or reliable or that any stored data will not be lost or corrupted.

b. Despite clause 17(a), Easy Agile warrants that:
i. the Products as licensed under this Agreement, if properly accessed and used, will materially comply with the specifications set out in the Documentation; and
ii. Easy Agile has the right to grant the licences referred to in this Agreement, and that the Customer's and its Authorised Users' access and use of the Products in accordance with this Agreement will not, to the best of Easy Agile's knowledge, infringe the Intellectual Property Rights of any third party.

c. Except for the express warranties contained in this Agreement, to the extent permitted by law, Easy Agile expressly exclude all representations, conditions and warranties, whether express or implied, statutory or otherwise.

d. To the maximum extent permitted by law, the warranties specified in this Agreement do not apply to use of the Products other than in the normal and customary manner for the purposes for which it is designed.

18. Liability

a. Easy Agile's liability arising out of or in connection with this Agreement (whether in contract, equity, negligence, tort or for breach of statute or otherwise), including under a warranty or indemnity, will be reduced by the extent, if any, to which the Customer's or its Authorised Users' wrongful, unlawful or negligent act or omission caused or contributed to the liability.

b. Except for each party's indemnification obligations or breaches of clauses 9, 13 or 16, neither party will be liable to the other party or any third party for any indirect, consequential, special, punitive, exemplary or incidental damages of any kind, or loss of data, opportunity, reputation or profits, however caused, arising out of or in connection to these terms or the Products, even if it has been advised of the possibility of those damages.

c. To the maximum extent permitted by applicable law, Easy Agile disclaims all obligations or liabilities with respect to No-Charge Products, including any Support Services, warranty, and indemnity obligations.

d. Except for the indemnification obligations set out in clause 15(a), to the fullest extent permitted by law, Easy Agile's total aggregate liability under this Agreement to the Customer (whether under statute, in contract or in tort, including for negligence, or otherwise) for liability suffered or incurred by the Customer in connection with this Agreement is limited to the amount equal to the amounts actually paid by the Customer to Easy Agile for the current License Term, except where not permitted by applicable law, in which case Easy Agile’s liability shall be limited to the maximum extent allowed by such applicable law.

e. The Customer must use all reasonable endeavours to mitigate its liability under this Agreement.

19. Australian Consumer Law

a. The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and other similar consumer protection laws and regulations may imply certain rights, consumer guarantees, warranties and remedies relating to the Products which cannot be excluded, restricted, qualified or modified by us (Non-Excludable Rights). Nothing in this Agreement excludes or attempts to exclude the Authorised User's Non-Excludable Rights as a consumer under the ACL.

b. If a supply by Easy Agile under this Agreement is a supply of goods or services to a consumer within the meaning of the ACL, to the extent that the ACL permits Easy Agile to limit its liability, then Easy Agile's liability is limited to:
i. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
ii. 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.

20. Insurance

a. Each party will effect and maintain appropriate insurance policies to provide reasonable coverage for its likely liability under this Agreement.

21. Dispute Resolution

a. A party claiming that a dispute has arisen out of or in connection with this Agreement must as soon as reasonably practicable give notice to the other party, and the parties will, within 30 Business Days, attempt to resolve the dispute between themselves in good faith, and each party will do anything (including executing any document) reasonably required to give effect to the agreed resolution of the dispute.

b. Should the parties be unsuccessful in resolving the dispute in accordance with clause 21(a), any dispute arising from or relating in any way to this Agreement, or the breach thereof, shall be resolved by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, except as follows:
i. the number of arbitrators shall be one;
ii. the place of arbitration shall be Sydney, New South Wales, Australia, but telephonic participation may be permitted by the arbitrator; and
iii. the language of the arbitration shall be English.

c. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

d. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the federal and state courts of New South Wales, Australia. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.

22. Suspension and Termination

a. Without limiting Easy Agile's rights in respect of the default, Easy Agile may suspend the Customer's and each of its Authorised Users' access to or use of the Products in the following circumstances:
i. the Customer fails to pay any Fee when due; and
ii. any use of the Products in breach of this Agreement by the Customer or any of its Authorised Users that in Easy Agile's sole discretion threatens the security, integrity or availability of the Products, however Easy Agile will use commercially reasonable efforts under the circumstances to provide the Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

b. Easy Agile may terminate this Agreement and the licences granted thereunder if:
i. the Customer or any of its Authorised Users breaches any terms and conditions of this Agreement that is capable of remedy, and the Customer does not remedy that breach within 30 days from the date of Easy Agile's notice to do so;
ii. the Customer or any of its Authorised Users breaches any terms and conditions of this Agreement that is not capable of remedy; or
iii. the Customer's or any of its Authorised Users' access to and use of the Products has been suspended for more than 30 days.

c. The Customer may terminate Customer's licences to the Products at any time by destroying all Customer's copies of the Software or ceasing Customer's access to the Hosted Services. The Customer will pay to Easy Agile any costs that cannot be cancelled, refunded or mitigated despite Easy Agile using reasonable endeavours to mitigate its cost.

d. On termination or expiry of the licence for any reason:
i. termination is without prejudice to any rights or liabilities of the parties accruing as at the date of termination;
ii. the Customer will pay Easy Agile:
1. the Fee payable up to and including the date of termination; and
2. if Easy Agile terminates the licence under this Agreement pursuant to clause 22(b) or the Customer terminates that licence without Easy Agile's default, the Fee for the balance of the licence period as set out in the Order (or extension period) including any amounts that have not yet been invoiced, and the Customer acknowledges and agrees that:
a. the Fees for the licence period are generally payable for the licence period in advance, however Easy Agile has agreed to permit the Customer to pay the Fee in monthly instalments in accordance with the Invoicing Terms and the Payment Terms; and
b. the payment of the Fees for the balance of the licence period is a genuine pre-estimate of loss that is likely to be sustained by Easy Agile arising from the termination;

iii. the Customer must remove all Software and Documentation from Customer's computer systems and destroy any copies of the Software and Documentation in Customer's possession; and
iv. Easy Agile will, at the Customer's choice, transfer to Customer or destroy the Customer Data and any Personal Information, unless Easy Agile is prevented from returning or destroying all or part of the Customer Data or Personal Information by applicable law. If Easy Agile cannot return or destroy the Customer Data and/or Personal Information, it warrants that it will guarantee the confidentiality of the Personal Information and Customer Data and will not actively process the Customer Data or Personal Information after termination.

23. Return Policy

a. The Customer may return the Software within 30 days of payment for any reason or no reason and will receive a refund of the amount paid for the returned Software. Upon return, Easy Agile will disable the license key that allowed the Software to operate. Easy Agile will not accept returns after the 30-day return period.

24. Export Restrictions

a. The Customer may not use or otherwise export or re-export any Product(s) except as authorised by United States law and the laws of the jurisdiction in which the Product(s) was obtained. In particular, but without limitation, the Product(s) may not be exported or re-exported:
i. into any U.S. embargoed countries; or
ii. to anyone on the U.S Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

b. By using the Products, Customer represents and warrants that Customer or any of its Authorised Users are not located in any such country or on any such list.

25. General

a. (Force Majeure) Any delay in performance (other than for the payment of amounts due) caused by an event beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. If a delay or failure by a party to perform its obligations due to an event beyond its reasonable control exceeds 90 days, Easy Agile may terminate this Agreement and the licences under it by written notice to the Customer.

b. (Assignment) Customer may assign this Agreement to succeeding parties in the case of a merger, acquisition or change of control; provided, however, that in each case, (a) Easy Agile is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this Agreement and (c) upon such assignment the assignee makes no further use of the Products licensed under this Agreement. Easy Agile may assign its rights and obligation under this Agreement without consent of Customer. Any permitted assignee shall be bound by the terms and conditions of this Agreement.

c. (Entire Agreement) This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement may not be modified or amended by Customer without Easy Agile’s written agreement (which may be withheld in Easy Agile’s complete discretion). In the event of a conflict between the terms of this Agreement and the terms of any open source licenses applicable to the Software, for the specific terms in conflict the terms of the open source licenses shall control with regard to the Software, or part-thereof.

d. (Severability) If any clause or part of any clause 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 clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

e. (Notices) Unless otherwise stated in this Agreement, all notices required by this Agreement must be in writing and sent by email to the email address of the relevant party specified in the Order or notified in writing by the party. Any notice sent by email will be treated as served on delivery.

f. (Waiver) A right created by this 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.

g. (US Government Users) If Customers are a U.S. Government end user, Easy Agile is providing the Products to Customers as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted to Customers by Easy Agile for the Products are the same as the rights Easy Agile customarily grant to others under this Agreement.

h. (Survival) Clauses 1, 9, 10, 12, 13, 14, 15, 16, 18, 19, 20, 21, 25, and all other provisions that, by their nature, are intended to survive the termination or expiry of this Agreement, will survive the termination or expiry of this Agreement.

i. (Rules of Interpretation) The terms of this Agreement and the Order are not to be interpreted against the interests of Easy Agile merely because Easy Agile proposed this Agreement or the Order or some provision in them, or because Easy Agile relies on a provision of the document to protect itself.

j. (Jurisdiction) This Agreement is governed by the laws of NSW, Australia and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts in NSW, Australia and its appellate courts.

k. (Revisions to Agreement) Easy Agile may update, modify or amend (together, Revise) this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Customers' rights, Easy Agile will use reasonable efforts to notify Customers. If Easy Agile revises this Agreement during the term of Customer's license, the revised version will be effective upon Customer's next renewal of a License Term, Support Services, or Hosted Services, as applicable. In this case, if Customer's object to any revisions, as Customer's exclusive remedy, Customer may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the revised Agreement is required for Customers to continue using the No-Charge Products.

Last updated on 7 June 2023.