1 THESE TERMS AND ORDER FORMS
(a) These SourseAI Client Terms (Terms) apply to each Order Form and may also apply if Platform Access is acquired through a Reseller pursuant to clause 14.
(b) Each Order Form will set out the specifics of the Platform Access that the Client agrees to acquire from SourseAI.
(c) The Agreement comprises these Terms and any Order Form.
2 PLATFORM ACCESS
An Order Form will indicate which Modules apply.
(a) The relevant Order Form will specify:
(i) the Commencement Date for the relevant Platform Access; and
(ii) the initial period over which that Platform Access will be provided (Initial Period).
(b) Unless otherwise agreed in the relevant Order Form, following the Initial Period, Platform Access will continue to be provided for one or more renewal periods of a duration equal to that of the Initial Period (each, a Renewal Period), unless the relevant Order Form is terminated earlier in accordance with the terms of that Order Form or these Terms.
(c) The Initial Period plus any Renewal Period is the Supply Period.
(d) At least 60 calendar days’ prior to the expiry of the Initial Period or then-current Renewal Period (as applicable), either party may notify the other that it does not wish for the Order Form to be renewed and in that event, the Order Form will expire at the end of the Initial Period or then-current Renewal Period (as applicable).
2.3 General use restrictions
The Client must:
(a) use the Platform Access in accordance with all applicable laws;
(b) not allow any third party to access the Platform;
(c) not use the Platform Access:
(i) in breach of this Agreement;
(ii) for any purpose other than its internal business purposes;
(iii) to engage in fraudulent or illegal behaviour, or in a way that the Client knows or ought to
reasonably know, infringes any third party’s Intellectual Property Rights, and
(d) ensure that its Personnel comply with subclauses 2.3(a), 2.3(b) and 2.3(c) above.
2.4 Client’s responsibilities
(a) The Client must:
(i) give SourseAI all Client Material, information and assistance reasonably necessary to enable SourseAI to provide the Platform Access;
(ii) obtain and maintain all necessary licences, permissions and consents which may be required for the Client’s Platform Access
(iii) promptly perform any Client Responsibilities to enable SourseAI to supply the Platform Access in an efficient and timely manner; and
(iv) cooperate with SourseAI and act reasonably in connection with the Client’s Platform Access.
(b) The Client acknowledges and agrees that if the Client does not comply with clause 2.4(a):
(i) SourseAI may not be able to provide the Platform Access to the Client; and
(ii) to the extent permitted by law, SourseAI is not responsible or liable for any failure to provide the Platform Access to the extent that failure arises from a failure by the Client to comply with clause
(c) The Client warrants that it is not subject to EU, US or other trade sanctions or economic restrictions.
2.5 Standards and limitations
(a) SourseAI will use reasonable endeavours to provide the Platform Access 24/7 during any Supply Period for Platform Access. However, to the extent permitted by law, SourseAI:
(i) does not warrant that:
(A) the Client’s use of the Platform will be uninterrupted or error-free; or
(B) the information obtained by the Client through the Platform will be accurate or meet the Client’s requirements;
(ii) is not liable for loss arising in connection with any failure in, fault with or degradation of the Platform or its outputs if that failure, fault or degradation is attributable to or caused by:
(A) a failure of the facilities or services of any third party; or
(B) incorrect or defective inputs from the Client,
(iii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(b) SourseAI may change the functionality of the Platform at any time provided that this does not diminish the functionality of the Platform.
(c) SourseAI will use all reasonable endeavours to meet any performance dates specified in an Order Form, but any such dates are estimates only and failure to meet such dates will not give the Client the right to terminate the Agreement.
(d) The Client acknowledges and agrees that:
(i) it is responsible for its decisions, acts or omissions that might result from using the Platform; and
(ii) SourseAI does not guarantee any outcome or the accuracy of any insight that might be indicated by way of the Platform.
(e) Any descriptions on the SourseAI website are published for the sole purpose of giving an approximate idea of the Platform.
(f) Platform Access is provided by SourseAI on a non-exclusive basis.
2.6 Data ingestion
(a) The Client acknowledges and agrees that SourseAI makes available several data ingestion processes. These processes may allow the Client to upload Client Material to the Platform in a way that means that (unless access is separately provided by the Client) Client Personal Information is encrypted, deidentified, obscured and otherwise not capable of being read by SourseAI’s Personnel.
(b) If the Client elects not to use the SourseAI PII Compliance and Management Tool data ingestion tool or provide data that is outside of the SourseAI Unified Data Model, the Client be required to agree to Additional Terms or an Additional Agreement.
2.7 Professional Services
(a) Where an Order Form includes Professional Services, the parties may agree a statement of work that will form part of that Order Form.
(b) SourseAI must provide any Professional Services with due care and skill.
(c) SourseAI will use reasonable endeavours to provide any Professional Services by the applicable Delivery Date.
(d) SourseAI will not be responsible for any failure to provide the Professional Services to the extent caused by any assumptions stated in the Order Form not being met.
2.8 Additional Terms and Additional Agreements
(a) If the Client will be required to accept Additional Terms, those Additional Terms will be indicated in the relevant Order Form.
(b) If the Client is required to enter into an Additional Agreement with a third party, that Additional Agreement will be indicated in the relevant Order Form. The Client agrees to remain bound by, and in compliance with, that Additional Agreement throughout the Supply Period.
(c) Any Additional Agreement entered into by the Client with a third party is between the Client and that third party, and not SourseAI. To the extent permitted by law, SourseAI has no liability under an Additional Agreement.
3 FEES AND INVOICES
(a) The Client must pay all applicable Fees to SourseAI.
(b) Fees may be payable on a fixed price basis or a time and materials basis. If an Order Form states that the Fees are an estimate only, the Client acknowledges and agrees that the Fees charged for the Platform Access will be based on SourseAI’s estimate, however the final Fees may be more or less than that estimate.
(c) For the avoidance of doubt, Fees are payable for Platform Access, regardless of whether the Client utilises that Platform Access.
(d) The Client will be invoiced for any Renewal Period.
3.2 Invoice and payment
(a) SourseAI must invoice the Client for the Fees and any other amount payable by the Client to SourseAI in accordance with these Terms and any Order Form.
(b) The Client must pay an invoice issued by SourseAI, without set-off, by the date specified on the invoice, or otherwise within 30 days after the date of issue of the invoice.
(c) The Client shall pay SourseAI electronically to SourseAI’s bank account or by any payment method reasonably stipulated by SourseAI. No payment shall be considered paid until it is received in cleared funds by SourseAI.
(d) The relevant Order Form will stipulate the currency in which payment will be made.
(e) Where permitted by law, Client must pay any merchant fees, bank fees and currency conversion fees associated with its payment.
3.3 Late payment
If the Client is late in paying any part of any monies due to SourseAI, SourseAI may (without prejudice to any other right or remedy available to it whether under these Terms or an Order Form or by any statute, regulation or by-law) do any or all of the following:
(a) charge Interest on the amount due but unpaid and on amounts that have been disputed where the dispute has been resolved in SourseAI’s favour from time to time from the due date until payment (after as well as before judgment);
(b) suspend the Platform Access pursuant to clause 8.4(a)(iii); and
(c) suspend data ingestion.
Source reserves the right to charge the Client for additional or accelerated work required by suspension.
An Order Form may set out allowances of SIOs that can be used in connection with Platform Access in a Contract Year. If the allowance of SIOs is exceeded in the relevant Contract Year, then any additional SIOs used in connection with the Platform will be purchased by the Client and charged for by SourseAI in blocks of 5,000 SIOs (Overage Blocks) at the Overage Rate. SourseAI may invoice for an Overage Block at any time following the triggering of the purchase of that Overage Block. Any Overage Block expires (without refund) at the end of the Contract Year in which the Overage Block requirement was triggered.
4 INTELLECTUAL PROPERTY
4.1 SourseAI Materials
(a) SourseAI or its licensors (as applicable) retains ownership of all Intellectual Property Rights subsisting in all SourseAI Materials.
(b) Any modification or enhancement to any SourseAI Material is deemed to form part of the SourseAI Materials (as applicable) and all Intellectual Property Rights in such modification or enhancement vest in SourseAI immediately from creation. This includes any improvements, modifications or learnings that may be made by or to the AI/machine-learning algorithms or processes as a result of the Client’s Platform Access.
(c) SourseAI grants to the Client for as long as the Platform Access is provided under the Terms, a non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any SourseAI Materials provided as part of the Platform Access, solely for the purpose of enjoying that Platform Access for the Client’s internal business use.
(d) SourseAI warrants that use of the SourseAI Material by Client in accordance with this Agreement will not infringe any third-party rights (including Intellectual Property Rights).
(e) SourseAI fully indemnifies and holds harmless the Client against any Loss arising out of a breach of the warranty given in clause 4.1(d) that gives rise to a claim by a third party that the use by the Client of any of the Intellectual Property Rights in the SourseAI Material in accordance with this Agreement infringes the intellectual property or other rights of that third party.
4.2 Client Material
(a) The Client or its licensors (as applicable) retains ownership of all Intellectual Property Rights subsisting in all Client Materials.
(b) Any modification or enhancement to any Client Material is deemed to form part of the Client Materials and all Intellectual Property Rights in such modification or enhancement vest in the Client immediately from creation.
(c) The Client grants to SourseAI:
(i) for as long as the Platform Access is provided under the Terms, a non-exclusive, global licence to use, reproduce and modify the Client Material solely for purposes of SourseAI providing the Platform Access to the Client and otherwise performing its obligations under this Agreement. This licence includes the right to sublicense; and
(ii) a perpetual, irrevocable, non-exclusive, global licence to use the Client Material solely for purposes of SourseAI carrying out machine-learning/AI training. This licence does not include a right to sublicense.
(d) The Client warrants that use of the Client Material by SourseAI in accordance with this Agreement will not infringe any third-party rights (including Intellectual Property Rights).
(e) The Client fully indemnifies and holds harmless SourseAI against any Loss arising out of a breach of the warranty given in clause 4.2(d) that gives rise to a claim by a third party that the use by SourseAI of any of the Intellectual Property Rights in the Client Material in accordance with this Agreement infringes the intellectual property or other rights of that third party.
4.3 Developed Material
Unless otherwise set out in an Order Form, any Intellectual Property Rights in Developed Material is owned by SourseAI, and to the extent Intellectual Property Rights in Developed Material do not automatically vest in SourseAI, the Client assigns all Intellectual Property Rights in or in relation to any Developed Material to SourseAI.
5 CONFIDENTIAL INFORMATION
5.1 Protection of Confidential Information
Each party must only use or copy the other party’s Confidential Information for the purposes of these Terms and the relevant Order Form (or exercising rights under these Terms or the relevant Order Form) and must take all steps reasonably necessary to:
(a) maintain the confidentiality of the other party’s Confidential Information;
(b) ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with these Terms; and
(c) enforce the confidentiality obligations required by these Terms.
5.2 Restriction on disclosure
(a) Each party must not disclose the Confidential Information of the other party to any person except:
(i) to its Personnel who need to know the Confidential Information, for the purposes of this Agreement;
(ii) where the disclosure is required by applicable law, or under compulsion of law by a court or Government Agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:
(A) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(B) before disclosing any information, gives a reasonable amount of notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;
(iii) if the other party has given its consent to the disclosure or use; or
(iv) as expressly permitted by these Terms.
(b) Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and is bound by confidentiality obligations that are substantially similar to those set out in these Terms.
5.3 Return of Confidential Information
(a) Subject to clause 5.3(b), each party must return (or, if requested by the other party, destroy or permanently de-identify) all copies of the other party’s Confidential Information in its possession or control within 14 calendar days of expiry or termination of this Agreement.
(b) If a party needs to retain the other party’s Confidential Information for the purpose of:
(i) complying with any applicable law;
(iii) internal quality assurance and record-keeping; or
(iv) performing its obligations or exercising its rights under these Terms and the relevant Order Form, then it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 5.3(a) promptly after it is no longer required for this purpose.
The obligations of confidence in clauses 5.1 and 5.2 do not apply to Confidential Information:
(a) that, at the direction of the Client, is provided to a third party by SourseAI;
(b) that is in the public domain otherwise than as a result of a breach of these Terms and the relevant Order Form or other obligation of confidence; or
(c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
6.1 SourseAI’s obligations
If and to the extent SourseAI collects, stores, uses, discloses or otherwise deals with Client Personal Information, SourseAI must only collect, store, use, disclose or otherwise deal with Client Personal Information:
(a) subject to the Client’s compliance with its obligations in clause 6.2(b), in accordance with applicable Privacy Laws; and
(b) only as required for the purposes of providing the Platform Access or as otherwise permitted under these Terms.
6.2 Client’s obligations
(a) The Client must comply with the Privacy Laws when handling any Personal Information provided or made available to it by or on behalf of SourseAI.
(b) If Client Personal Information is made available to SourseAI, the Client must make all disclosures and obtain all consents required to ensure that:
(i) the Client is lawfully (including without breaching the Privacy Laws) able to provide, disclose or make available the Client Personal Information to SourseAI; and
(c) The Client fully indemnifies and holds harmless SourseAI against any Loss arising out of a breach of clause 6.2.
7 LIMITATION OF LIABILITY
(a) Nothing in this Agreement limits or excludes a party’s liability:
(i) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
(ii) for fraud or fraudulent misrepresentation by it or its employees, as applicable;
(iii) where that liability arises under an indemnity; or
(iv) where liability cannot be limited or excluded by applicable law.
(b) Subject to clause 7(a) SourseAI will not be liable to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement, including any:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of production;
(iv) loss of agreements or contracts;
(v) loss of business opportunity;
(vi) loss of anticipated savings;
(vii) loss of or damage to goodwill;
(viii) loss of reputation; or
(ix) loss of use or corruption of software, data or information.
(c) Subject to clause 7(b), SourseAI’s maximum aggregate liability to the Client for any loss or damage or injury arising out of or in connection with this Agreement, including any breach by SourseAI of this Agreement however arising, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the amount of Fees paid or payable in the first 12 months of this Agreement.
(d) Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of SourseAI in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of good or services.
(e) If SourseAI is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, SourseAI’s total liability to the Client for that failure is limited to, at SourseAI’s option, in the case of a supply of goods, SourseAI replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, SourseAI supplying the services again or paying the cost of having the services supplied again.
(f) This clause 7 will survive termination of the Contract.
8 TERMINATION AND SUSPENSION
8.1 Termination for breach
(a) a party (the first party) commits a breach of this Agreement that has a material and adverse effect on the other party, and fails to remedy that breach within 10 days of receiving notice from the other party requiring the first party remedy that breach (where capable of remedy);
(b) the first party commits a breach of this Agreement that has a material and adverse effect on the other party and that breach is incapable of remedy; or
(c) an Insolvency Event occurs in relation to the first party,
then the other party may terminate the Agreement (in the case of 8.1(c) above, subject to any provision of the Corporations Act 2001 (Cth) or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this Agreement) by notice to the first party in which case the Agreement will terminate on the date specified in that notice or, if no date is specified, immediately.
8.2 After termination or expiry of an Order Form
On termination or expiry of an Order Form:
(a) SourseAI will cease to provide the Platform Access under that Order Form;
(b) accrued rights or remedies of a party are not affected;
(c) the Client will pay to SourseAI all Fees in connection with Platform Access;
(d) except as expressly specified otherwise in these Terms or the Order Form, all licences and similar rights granted, cease to be granted immediately; and
(e) within a reasonable period of time after termination or expiry of the Order Form, the Client must return to SourseAI all SourseAI Materials and SourseAI must return to the Client all Client Materials.
Termination or expiry of an Order Form will not affect clauses 2.5, 4, 5, 6, 7, 8.2, 9, 10, 13, 14 and this clause 8.3, or any provision of these Terms which is expressly or by implication intended to come into force or continue on or after the termination or expiry.
(a) Without limiting any other remedy SourseAI may have under these Terms or at law, SourseAI may suspend the Client’s Platform Access if:
(i) the Client breaches this Agreement;
(ii) the Client’s counterparty to an Additional Agreement terminates its Additional Agreement with the Client or refuses to enter into an Additional Agreement with the Client;
(iii) the Client has not paid SourseAI the Fees in accordance with these Terms or the relevant Order Form, provided that SourseAI shall first have given to the Client at least seven days’ notice that the Platform Access would be suspended if the outstanding sums are not paid in full;
(iv) SourseAI receives a notice from a third party with a legitimate interest to be protected (including any regulatory body) requiring SourseAI to cease providing the Platform Access to the Client or remove any content the Client is making available through the Platform Access. Subject to any contrary legal requirements, SourseAI shall provide the Client with a copy of the notice.
(b) SourseAI will restore the Client’s Platform Access as soon as reasonably possible once the reason for the suspension has been addressed or removed.
(c) If SourseAI suspends the supply of any Platform Access or Professional Services for a period of 15 Business Days or more, it may by written notice to the Client, immediately terminate the Agreement (in whole or in part).
(a) Any dispute that is not resolved within 90 days of the dispute arising must be referred to and finally resolved by arbitration in accordance with the arbitration rules of the Australian Centre for International Commercial Arbitration (known as ACICA Arbitration Rules).
(b) Notwithstanding anything in this clause 9, a party may at any time commence court proceedings in relation to a dispute or claim arising in connection with these Terms or the relevant Order Form where that party seeks urgent interlocutory relief.
9.2 General principles
(a) The parties agree that
(i) the seat of the arbitration will be Sydney;
(ii) the number of arbitrators will be one; and
(iii) the language of the arbitration will be English.
9.3 Award final and binding
Any award made in respect of arbitration conducted pursuant to this clause 9 will be final and binding upon the parties.
(a) During the Supply Period and the Restraint Period, the Client will not solicit or entice any employee or contractor of SourseAI to work for the Client or any competitor of SourseAI’s business, unless the Client obtains SourseAI’s prior written consent.
(b) The Restraint Period means:
(i) 24 months after the relevant Supply Period;
(ii) 12 months after the relevant Supply Period;
(iii) 6 months after the relevant Supply Period.
(c) The undertakings contained in clause 10(a) and resulting from any combination of the wording from clause 10(b) constitutes a separate and independent provision, severable from the other undertakings and enforceable by SourseAI separately against the Client and independently of each of the other undertakings. If a court of competent jurisdiction finally decides any such undertaking to be unenforceable in whole or in part, the enforceability of the remainder of that undertaking or any other undertaking will not be affected.
(d) The Client agrees that the undertakings contained in clause 10(a) and resulting from any combination of the wording from clause 10(b) are no more extensive than is reasonable to protect SourseAI.
11 FORCE MAJEURE
A party will not be:
(a) in breach of this Agreement as a result of; or
(b) liable for,
any failure or delay in the performance of its obligations (other than a payment obligation) under this Agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event, provided that:
(c) that party advises the other party of the details of the Force Majeure Event, and its likely effect on the performance of its obligations under this Agreement; and
(d) that party takes all steps reasonably necessary to recommence performance of the affected obligations and minimise the delay caused by the Force Majeure Event.
Terms used in this clause 12 that are defined in the GST Act have the meaning given to them in the GST Act.
12.2 GST exclusive
Except under clause 12, the consideration for a Supply made under or in connection with an Order Form or these Terms does not include GST.
12.3 Taxable Supply
If a Supply made under or in connection with an Order Form or these Terms is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:
(a) the Recipient must pay the GST Act Supplier an amount equal to the total GST for the Supply, in addition to and in the same manner as the consideration otherwise payable under an Order Form or these Terms for that Supply; and
(b) the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.
12.4 Later GST change
For clarity, the GST payable under clause 12.3 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the GST Act Supplier is liable, however caused.
12.5 Reimbursement or indemnity
If either party has the right under an Order Form or these Terms to be reimbursed or indemnified by another party for a cost incurred in connection with these Terms or the relevant Order Form, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
12.6 Warranty that Tax Invoice is issued regarding a Taxable Supply
Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.
12.7 Progressive or Periodic Services
Where a Supply made under or in connection with an Order Form or these Terms is a Progressive or Periodic Supply, clause 12.3 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
13 MARKET INSIGHTS MODULE
(a) This clause 13 only applies in relation to the Client’s use of the Market Insights Module. The Market Insights Module is part of the ‘Platform’ for the purpose of the Terms.
(b) The Client acknowledges and agrees that the data used to provide the Market Insights Module product is from a variety of third-party sources. Accordingly, and without limiting clause 2.5 of the Terms, SourseAI does not warrant that such information or the Market Insights Module will be accurate, complete or error-free. Clauses 4.1(d) and (e) do not apply in relation to the Client’s use of the Market Insights Module.
(a) The Client may choose to enjoy Platform Access through a SourseAI authorised reseller (Reseller).
(b) In the event the Client engages, or otherwise accesses the Platform through a Reseller:
(i) the Client must enter into a valid and binding agreement with its chosen Reseller specifying the terms and conditions governing its relationship with such Reseller and which will include the information that would otherwise be contained in an Order Form;
(ii) any fees and payment terms that the Client is responsible for will be determined between the Client and its chosen Reseller, and paid in accordance with the agreement between the Client and such Reseller;
(iii) if the Client’s agreement with its Reseller is terminated or expires for any reason, or in the event a Reseller no longer has rights to resell to the Client, the Client may continue to access products and services directly from SourseAI at SourseAI’s then-current rates, or through another authorised Reseller; and
(iv) Resellers are not authorised to modify these Terms or make any promises or commitments on SourseAI’s behalf, and SourseAI is not bound by any obligations to the Client, Resellers, or any other third party other than as expressly set forth in these Terms.
(c) In the event the Client accesses the Platform through a Reseller, the Client is solely responsible for:
(i) any related rights and obligations in the Client’s applicable agreement with its Reseller; and
(ii) as between the Client and SourseAI, any access by the Reseller to the Client’s data and information that the Client may create for its Reseller.
(d) In addition, in the event the Client accesses the Platform through a Reseller, the Client agree that the terms of this clause 14 take precedence over any conflicting terms in these Terms.
(a) If there is any inconsistency between the provisions of this Agreement, a descending order of precedence will be accorded to:
(i) any Order Form; and
so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.
(b) The parties agree that any standard terms, purchase order terms or similar that are provided or made available by the Client will have no legal effect.
15.2 Rights cumulative
Unless expressly stated otherwise in these Terms, the rights and remedies under any indemnity or otherwise provided under these Terms are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.
An Order Form may only be amended or varied by written agreement between the parties.
15.4 Assignment and novation
Any rights or obligations of the Client that arise out of or under an Order Form or these Terms are not assignable or able to be novated or otherwise dealt with by the Client without the prior written consent of SourseAI.
15.5 Entire agreement
(a) These Terms and any Order Form supersede all previous agreements about its subject matter. These Terms and any applicable Order Form embody the entire agreement between the parties.
(b) To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in these Terms and the Order Form.
(c) Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into the Order Form and these Terms.
15.6 Further assurances
The Client must do all things necessary to give effect to any Order Form and these Terms and the transactions contemplated by it. Without limiting the foregoing, during the Supply Period, the Client will make available to SourseAI adequate information and facilities necessary to provide Platform Access.
15.7 Governing law and jurisdiction
(a) The laws of New South Wales, Australia govern any Order Form and these Terms.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and courts competent to hear appeals from those courts.
A clause or part of a clause of an Order Form or these Terms that is illegal or unenforceable may be severed from that Order Form or these Terms (as applicable) and the remaining clauses or parts of the clause of the relevant Order Form or these Terms continues in force.
SourseAI may subcontract the performance of all or any part of its obligations under an Order Form or these Terms. SourseAI remains liable for the acts and omissions of its subcontractors, as if they were its own acts and omissions.
16 DEFINITIONS AND INTERPRETATION
In an Order Form and these Terms:
|Additional Agreement||means any additional agreement indicated in an Order Form (for example, a third-party EULA).|
|Additional Terms||means any additional terms as indicated in an Order Form or other document (for example, terms that a third-party requires SourseAI to flow-down to the Client).|
|Agreement||has the meaning given in clause 1(c).|
|Client||means SourseAI’s counterparty to an Order Form or an entity that has otherwise agreed to comply with these Terms.|
|Client Material||means any material provided by or to which access is given by the Client to SourseAI for the purposes of this Agreement (and would include, for the avoidance of doubt, the material of the Client’s customer, if made available to SourseAI).|
|Client Personal Information||means any Personal Information provided to SourseAI, or to which access is given to SourseAI, by the Client or its Personnel (and would include, for the avoidance of doubt, Personal Information of the Client’s customer, if made available to SourseAI).|
|Client Responsibilities||means the responsibilities identified as such in an Order Form.|
|Commencement Date||the date indicated as such in an Order Form.|
|Confidential Information||of a party means these Terms, the terms of any Order Form and any information: relating to the customers, clients, employees, sub‑contractors or other persons doing business with that party;which is by its nature confidential;which is designated as confidential by that party; orwhich the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of SourseAI, includes any SourseAI Material and, in the case of the Client, includes Client Material.|
|Contract Year||means the annual period commencing on the Commencement Date and each anniversary of the Commencement Date thereafter.|
|Corporations Act||means Corporations Act 2001 (Cth).|
|Delivery Date||means the date described as such in the relevant Order Form (if any).|
|Developed Materials||means materials (of any nature) created by or on behalf of SourseAI in the course of providing Platform Access.|
|Fees||mean the fees set out in an Order Form and any other amounts contemplated by these Terms as being payable by the Client to SourseAI.|
|Force Majeure Event||means any occurrence or omission outside a party’s control including a physical natural disaster including: fire, flood, lightning or earthquake; war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law; national emergency; epidemic, pandemic, public health emergency, communicable disease outbreak, quarantine restriction, and precautionary measures relating to the same; ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel; failure of a third party service provider; failure of a third party to provide a necessary input;confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any Government Agency; orders or acts of military, civil authority or Government Agency; law taking effect after the relevant Commencement Date; or strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors.|
|Government Agency||means: a government or government department or other body;a governmental, semi-governmental or judicial person; ora person (whether autonomous or not) who is charged with the administration of a law.|
|GST Act||means A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|GST Act Supplier||means the entity making the Supply.|
|Insolvency Event||the occurrence of any one or more of the following events in relation to a party: any step is taken to wind up, bankrupt, or appoint an administrator, controller, receiver, a receiver and manager, a liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business (terms used in this term are as defined in the Corporations Act);anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in paragraphs (a) to (c) of this definition.|
|Intellectual Property Rights||means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.|
|Initial Period||has the meaning given in clause 2.2(a)(ii).|
|Interest||means interest on any payment owing under an Order Form or these Terms calculated: at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for commercial overdrafts or, if lower, the maximum rate permitted by applicable law; anddaily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.|
|Loss||means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, whether direct to indirect, including all legal and other professional costs on a full indemnity basis.|
|Module||means a SourseAI product module set out in an Order Form.|
|Order Form||means an agreed order for Platform Access that incorporates these Terms, validly executed by both parties, in the form required by SourseAI from time to time.|
|Overage Block||has the meaning given in clause 3.4.|
|Overage Rate||has the meaning given in the Order Form.|
|Personal Information||has the meaning given to that term in the Privacy Act.|
|Personnel||means a party’s employees, secondees, directors, officers, contractors, professional advisers and agents.|
|Platform||means the platform known as SourseAI that is operated by SourseAI.|
|Platform Access||means access to the Platform in accordance with this Agreement.|
|Privacy Act||means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued there under, as amended from time to time.|
|Privacy Laws||means: the Privacy Act;the Australian Privacy Principles (or APPs) contained in Schedule 1 of the Privacy Act; andall other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.|
|Professional Services||means any professional services that SourseAI agrees to provide to the Client in an Order Form, and which may be more fully described in a statement of work between the parties.|
|Progressive or Periodic Supply||means a Taxable Supply that satisfies the requirements of section 156-5 GST Act.|
|Renewal Period||has the meaning given in clause 2.2(b)|
|SIO||means a service in operation (such as a mobile, internet or voice service).|
|Sourse||means Sourse Pty Ltd ABN 86 160 558 341 trading as Sourse.|
|SourseAI Material||means any material (including the Platform) provided by or to which access is given by SourseAI to the Client for the purposes of this Agreement.|
|Supply||has the meaning given in the GST Act.|
|Supply Period||has the meaning given to it in clause 2.2(c) and also includes any period in which the Professional Services are provided.|
|Terms||has the meaning given to it in clause 1(a).|