Style Arcade Software Pty Ltd (“Style Arcade”, we, us, our, ours) has developed Retail Merchandise Buying and Planning Software (Software) and provides this Software and access to their platform on a subscription basis.
1.1 In consideration of payment of the Fees, subject to these Terms, we grant you and your Authorised Users a non-exclusive, non-transferable, non-assignable licence during the Term to access and use the Software solely for your internal business purposes.
1.3 You agree that you will not permit any third-party, including without limitation any Authorised Users, to: (i) alter, modify or create any derivative works of the Software, the underlying source code, or the Documentation in any way, including without limitation customisation, translation or localisation; (ii) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Software or Documentation, including for timesharing; (ii) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (iii) copy, distribute, link, frame, mirror or otherwise make available any portion of the Software to any third party; (iv) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Software or Documentation; (v) attempt to bypass or tamper with the security, operation of the Software; (vi) attempt to access the accounts or data of any other customer or user; or (vii) use the Software for benchmarking purposes or otherwise to analyse its workings and features for any competitive purposes or in a manner that imposes unusual demands on the service outside of normal functions and operations.
2. PROVISION, VARIATION AND ACCEPTANCE OF SERVICES
2.1 Provision of Services
(a) We will use commercially reasonable efforts to make the Software available in accordance with any agreed service levels. However, on occasion the Services may be unavailable to permit maintenance, during planned downtime, of which we shall endeavor to give advance electronic notice, or other development activity to take place, or in the event of Force Majeure.
(b)The Software interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide the feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, we exercise the right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation.
(c) We may provide you, from time to time, with Upgrades, Updates or Fixes at our sole discretion. We will provide any Update or Fix free of charge, but we are under no obligation to provide Updates. You can choose, at its discretion, to purchase any Upgrades at the rates set by us
(d) We will provide the Deliverables and perform the Related Services in accordance with the service levels specified in the Engagement Terms agreed between you and us.
2.2 Variation of Services
(a) If you want to vary the Engagement Terms;
(i) you must send us a Change Request Form setting out the proposed variations;
(ii) we will log the Change Request and send you a written acknowledgement of the Change Request;
(iii) we will make reasonable endeavours to respond in writing within 14 days specifying what impact the Change Request will have on the Services, Deliverables, SLA, Fees, and timelines; and
(iv) After receiving the response, you must give us a written notice accepting or rejecting the response.
(b) If we want to vary the Engagement Terms,
(i) We will send you a Change Request Form setting out the proposed variations and specifying what impact the Change Request will have on the Services, Deliverables, SLA, Fees, and timelines; and
(ii) After receiving the response, you must give us a written notice accepting or rejecting the Change Request within 7 days.
2.3. Acceptance of Services
(a) Once we complete the Deliverables, we will provide you with a written notice of completion.
(b) Your Representative must verify the Deliverables in accordance with the Acceptance Criteria during the Review Period.
(c) Your Representative must give us a written notice of acceptance or rejection by the end of the Review Period. A notice of rejection must set out a list of errors that need to be rectified by us.
(d) We will rectify the errors and resubmit the Deliverables for acceptance.
3.1 Fees: You must pay to Style Arcade the Fees. The Fees exclude GST, which you must pay on taxable supplies under this Agreement.
3.2 Invoicing and Payment: We will provide you with valid GST tax invoices on the dates set out in the Payment Terms. You must pay the Fees on the dates set out in the Payment Terms, electronically in cleared funds without any set off or deduction.
3.3 Overdue Amount: We may charge interest on overdue amounts, Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank at the due date (or, if the primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
3.4 Increases: by giving at least 30 days’ written notice, we may increase the Fees once per calendar year by the percentage change in the Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by the Australian Bureau of Statistics prior to the date of the notice. Fees updated under this clause are deemed to be the Fees listed in the Engagement Terms. If you do not wish to pay the increased Fees, you may terminate the Agreement on no less than 30 days’ notice, provided that the notice is received by us before the effective date of the Fee increase, and that all due and outstanding Fees are paid for on the date of such notice. If you do not terminate this Agreement in accordance with this clause, you are deemed to have accepted the increased Fees.
3.5 GST The Fees are exclusive of GST. If any GST is imposed on any supply made under this Agreement, then the party making the supply will collect the GST from the recipient in addition to the Fees. The GST is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made.
4. YOUR RESPONSIBILITIES
You agree to:
(a) appoint a Representative who will be, responsible for your project management, technical engagement and acceptance of the Deliverables;
(b) fully cooperate with Style Arcade in giving prompt instructions and informing Style Arcade any data or system changes that could impact the data integrity within the Software; and
(c) provide the necessary technical resources to enable an automated extract of your Data feeding into the Software.
4.2 Access Conditions You must ensure that all usernames and passwords required to access the Services are kept secure and confidential. You must immediately notify us of any unauthorised use of your passwords or any other breach of security and we will reset your password and you must take all other actions that We reasonably deem necessary to maintain or enhance the security of our computing systems and networks and your access to the Software.
4.3 Usage Restrictions The Services are subject to limitations on the number of Authorised Users, products and stores as specified in the Engagement Terms. You acknowledge that we will charge incremental fees if these limits are exceeded. We will make reasonable endeavours to give you notice of any change in the number of Authorised Users, products and stores that would exceed the limits and the estimated additional fees.
4.4 Authorised Users
(a) You acknowledge and agree that
the Software must not be accessed by more than the specified number of Authorised Users. Fees are calculated based on the total number of Authorised Users active during a month (“Monthly Users”). An Authorised User’s account may not be shared or used by more than one Authorised User without our prior consent, but may be reassigned to a new Authorised Users replacing persons who no longer require the access to the Software;
(b) you are solely responsible for selecting secure Authorised User passwords, changing passwords frequently, and maintaining the confidentiality of Authorised User logons and passwords;
(c) we will not be liable for any losses arising from unauthorised access to the Software due to your or your Authorised Users’ failure to protect their account through proper maintenance of logons and passwords.
5.1 Automated Data Extract We require a regular, automated, data feed from you to remain updated on merchandise movements. You will be solely responsible for supplying the automated data extract that meets the criteria specified in the Engagement Terms.
5.2 Storage You should store any data extract files in your local infrastructure until we confirm that the files have been received by us.
5.3 Backup You should back up and retain any data extract files Extract data files for traceability. We will be taking backups of all data irrespective of format (file or database) daily and retaining for 30 days.
Indemnity You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any data supplied by You infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the data is objectionable, incorrect or misleading.
6. INTELLECTUAL PROPERTY
(a) Title to, and all Intellectual Property Rights in the Software, and any Documentation remain the property of us (or Our licensors).
(b) We warrant that the Software does not violate or infringe any third party’s claims in regard to intellectual property, patents and/or trademarks and that to the best of its knowledge no legal action has been taken against it for any infringement or violation of any third party intellectual property rights.
6.2 Ownership of Data
(a) Title to, and all Intellectual Property Rights in, the data that you supply to us (“Data”) remain Your property.
(b) You grant us a licence to use, modify, copy, transmit, store, and back-up the Data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of Services to you.
7. CONFIDENTIALITY AND PRIVACY
7.1 Confidentiality Unless the relevant party has the prior written consent of the other or unless required to do so by law:
(a) each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with the Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by the Agreement.
(b) each party's obligations under this clause will survive termination of the Agreement.
(a) We shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data.
(b) We will not disclose your Data except, as compelled by law, or as you expressly authorise in writing, or access your
Data except to provide the Software and prevent or address service or technical problems, or at your request in connection with customer support matters.
(c) You agree that is your responsibility to keep your Data up to date.
7.3 Use of Data We may collect, use and disclose all such transactional and performance data for our business purposes (including Software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you.
7.4 Publicity During the Term, we may disclose your name as a customer of ours and/or user of the Software, and you grant us the right to display your name and logo in our marketing materials and on our website, in each case in accordance with any branding guidelines you may provide to us.
8.1 You warrant that:
(a) you have the authority to act on behalf of any person or entity to whom the Services are provided;
(b) you are authorised to use the Software and to access the Data, including any information or Data input into the Software by any person you have authorised to use the Services; and
(c) You are responsible to determine that the Software meets the needs of your business and are suitable for the purposes for which they are used.
8.2 No Warranties:
(a) To the maximum extent permitted by law, our warranties are limited to those set out in the Agreement, and all other conditions, guarantees, or warranties whether expressed or implied by statute or otherwise are expressly excluded.
(b) Except for the foregoing, we provide the service “as is” without any warranty whatsoever. We disclaim all representations and warranties with respect to the services, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, reliability, accuracy or achievement of results.
9. LIMITATION OF LIABILITY
Except for a breach of clause 7 (Confidentiality and Privacy), neither party shall be liable to the other, for any special, indirect, incidental or consequential damages, or lost data or profits, whether or not foreseeable. To the extent permitted by law, our liability arising out of or in connection with this agreement shall not exceed the amounts paid us by you in the twelve-month period immediately prior to the event giving rise to such liability.Without limiting the foregoing, we will have no liability for any failure of the services arising from or related to (i) your or your authorised users’ failure to configure the services in conformance with the documentation, or (ii) you or your authorised users’ failure to provide accurate data.
10. TERM AND TERMINATION
10.1 Term This Agreement commences on the Effective Date continues until the date specified in the Engagement Terms (the “Term”) or as may be extended by the Parties.
10.2 Termination for Cause Either party may, by written notice to the other party, immediately terminate the Agreement if the other party: (i) breaches any material provision of the Agreement and the breach is not remedied within 14 days of the receipt of the written notice from the first party requiring it to remedy the breach; or capable of being remedied; (ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or charge’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or (iii) is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
10.3 Consequences of Termination or Expiry Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry. On termination or expiry of the Agreement, you must immediately pay all Fees for Services provided prior to that termination or expiry. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control. The licence granted under this Agreement will be immediately revoked. Clauses 6, 7, 8, 9, 11, 12 and 13 will survive any termination or expiration of this Agreement.
11.1 Entire agreement: The Agreement represents the entire agreement between you and us and supersedes and extinguishes all prior agreements, representations (whether oral or written).
11.2 Independent Contractor: We are an independent contractor and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
11.3 Waiver: If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
11.4 Force Majeure: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
11.5 No Assignment: You may not assign or transfer any rights to any other person without our prior written consent.
11.6 Governing law and jurisdiction: This Agreement is governed by and construed in accordance with the law of New South Wales and both parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.
11.7 Severability: If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of the Agreement will be binding on the parties.
11.8 Notices: Unless otherwise stated within this Agreement, notices to be given to either party must be in writing and delivered by electronic mail at the email address you supplied to us or to us at our registered office.
11.9 Electronic Records and Signature: It is agreed by the parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the parties intend that the use of an Electronic Signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including Electronic Transactions Act 2000 (NSW), or any other similar laws.
11.10 Amendments: This Agreement may be varied or updated by us at any time and you will be deemed to accept any such changes by continuing to access the Software after the changes have been made.
12. DEFINITIONS AND INTERPRETATION
Acceptance Criteria means the criteria that are specified in the Engagement Terms and used to verify the Deliverables by you.
Authorised User means any employees and individual contractors of yours that use the Services with your authorisation from time to time.
Business Day means any day other than a Saturday, Sunday, or public holiday in Sydney, Australia.
Confidential Information means a disclosing party’s non-public written information, in any form, and all copies, summaries and extracts, regardless whether they are identified as confidential at the time of disclosure, excluding any information that:
(i) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of recipient;
(ii)was known to recipient, free of any confidentiality obligations, before its disclosure by discloser;
(iii) becomes known to recipient, free of any confidentiality obligations, from a source other than discloser; or
(iv) is independently developed by recipient without use of the Confidential Information.
Deliverables means the services we will provide to you as specified in the= Engagement Terms.
Documentation means any information published by us including reference material, help documentation and product information relating to the use of the Software.
Effective Date means the start date as specified in the Engagement Terms.
Electronic signature means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message;
Engagement Terms means the terms specified and agreed by you and us outlining the Scope and commercial terms of the Software usage.
Fees means the monthly fee (excluding any taxes and duties) payable by you as stipulated in the Engagement Terms.
Fix means a minor amendment in the Software, intended to remove bugs or alter minor features which impair the Software’s functionality.
Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.
GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Law (A New Tax System(Goods and Services Tax) Act 1999 (as amended)) and all related ancillary legislation which provides for a broad-based consumption tax on the supply of Goods and Services.
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Payment Terms means the terms for the payment of any Fees due under this Agreement as specified in the Engagement Terms.
Related Services means any services required by you to implement and use the Software as specified in the Engagement Terms, which may include configuration, implementation, customization, consulting, and training.
Representative means the person nominated by You in accordance with clause 5.1 as the contact person receiving
correspondence and giving instructions from and to us.
Review Period means the period set out in the Engagement Terms for verification of the Deliverables.
Service Level or SLA means the agreed availability(Up-time) as specified in the Engagement Terms.
Updates means a minor amendment in the Software, which may contain new features or minor improvements and shall be marked as a new sub-version number.
Upgrades means a material amendment in the Software, which contains new features and or major performance improvements and shall be marked as a new version number