SMT End User Terms
This agreement governs Your acquisition and use of Our Services. Although You will have a Master Service Agreement or equivalent (“MSA”) between You and an Approved Source, the Services are hosted by Us. By agreeing to the terms of the MSA, You are accepting this Agreement.
2. OUR RESPONSIBILITIES
2.1. Provision of Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Work Orders, (b) provide Our standard support for the Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
2.2. Protection of Your Data. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Work Order, Services and access to Content are purchased as subscriptions.
3.2. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Work Orders. Unless otherwise specified, (a) a quantity in a Work Order refers to Users, and the Service or Content may not be accessed by more than that number of Users, and (b) a User’s password may not be shared with any other individual. Unlimited does not mean infinite, particularly in relation to Users, monitored terms and application program interface (API) calls. If Your use of a particular part of the Service is more than 10x the client average and is contributing to system performance issues for all clients, You agree to work with Us to remedy the issue by reducing the number of Users, terms, API calls etc.
3.3. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Compliance Documents and Work Orders, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorised access to or use of Services and Content, and notify Us promptly of any such unauthorised access or use, (d) use Services and Content only in accordance with this Agreement, Compliance Documents, Work Orders and applicable laws and government regulations, and (e) comply with terms of service of any Non-SMT Applications with which You use Services or Content.
3.4. You acknowledge and agree that: (a) the Services are not intended to be used as the sole basis for any business decision, and are based upon data which is in part provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable to guarantee, (b) the Services involve models and techniques based on statistical analysis, probability and predictive behaviour, and We and Our relevant licensors are unable to accept any liability for (i) any inaccuracy, incompleteness or other error in the Services and/or the Content which arises as a result of data provided to Us or Our relevant licensor by You or any third party, and (ii) any failure of the Services to achieve any particular result for You; (c) Content has not been collected for, and is not intended to be indicative of, any person’s employability, credit worthiness, credit standing, credit capacity, or other characteristics related to such person’s manner or mode of living; and (d) If We inform You that a specified activity or purpose is prohibited, You will ensure that any and all end users immediately cease processing of any such data for the prohibited activity or purpose.
3.5. Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in a Work Order or the Compliance Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-SMT Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-SMT Application to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorised access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement or a Work Order, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in a Work Order or the Compliance Documents, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Compliance Documents, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-SMT product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Compliance Documents or Work Orders, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
3.6. External Services. If You subscribe to a Service for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, such use is subject to the external service provisions of the Compliance Documents, and You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.
3.7. Removal of Content and Non-SMT Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-SMT Application hosted on a Service by You may violate Our External Services regulations or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-SMT Application or modify the Non-SMT Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-SMT Application until the potential violation is resolved.
4. NON-SMT PROVIDERS
4.1. We or third parties may make available third-party products or services, including, for example, Non-SMT Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-SMT provider, product or service is solely between You and the applicable Non-SMT provider. We do not warrant or support Non- SMT Applications or other Non-SMT products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in a Work Order.
4.2. Non-SMT Applications and Your Data. If You choose to use a Non-SMT Application with a Service, You grant Us permission to allow the Non-SMT Application and its provider to access Your Data as required for the interoperation of that Non-SMT Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-SMT Application or its provider.
4.3. Integration with Non-SMT Applications. The Services may contain features designed to interoperate with Non-SMT Applications. To use such features, You may be required to obtain access to such Non-SMT Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-SMT Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-SMT Application ceases to make the Non-SMT Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
5. PROPRIETARY RIGHTS AND LICENSES
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Work Order, this Agreement and the Compliance Documents.
5.3. License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-SMT Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-SMT Application or such program code.
6.1. Privacy Laws. Each party must at all times comply with any Privacy Laws (to the extent that either party is subject to such laws and in the case of Us, to the extent that We must treat the information in the same manner as if the Privacy Laws were applied to Us)
6.3. Complaints: We must inform You within 5 Business Days:
6.3.1. if a request is received from a person to inspect, access or change Personal Information relating to that person; or
6.3.2. of any privacy complaints received from a person or any events relating to Personal Information which may cause the Privacy Laws to be breached,
and comply with the reasonable directions of You regarding any request or complaint received.
6.4. Privacy Requirements: Without limiting any other Section of this Agreement:
6.4.1. We must maintain comprehensive data security systems, practices and policies and must take all necessary steps to ensure that all Personal Information and Confidential Information held in connection with this Agreement is secure and stored or recorded accurately and is protected (including against corruption, interference and loss and/or unauthorised access, use, modification, processing, disclosure or other misuse) and that only authorised representatives who have agreed to protect the privacy and confidentiality of the information in accordance with this Agreement and who have a legitimate role in fulfilling the terms of this Agreement have access to the information;
6.4.2. We must in respect of all Personal Information held in connection with this Agreement comply with any reasonable requests or directions issued by You from time to time arising directly from, or in connection with, the exercise of the functions of any regulator;
6.4.4. We must not, in respect of any Personal Information held in connection with this Agreement, without the prior written approval of You (including in any Work Order):
18.104.22.168. disclose, transfer or permit the disclosure or transfer outside of Australia of such information; or
22.214.171.124. allow or permit access to any such information by any person outside of Australia at the time of such access.
6.4.5. Where You have approved the disclosure or transfer of Personal Information outside of Australia (including in any Work Order), We must take reasonable steps to ensure that the overseas recipient does not breach any Privacy Laws or otherwise is subject to a Law or binding scheme, that has the effect of protecting the information in a way that, overall, is at least substantially similar to the way in which Privacy Laws protect the information and that there are mechanisms that a person can access to take action to enforce that protection of the Law or binding scheme.
6.4.6. Subject to Section 7.4.5, Personal Information held in connection with this Agreement must be stored in Australia only and unless otherwise agreed in writing, in the event that any Personal Information is required to be stored by Us on a cloud server, the cloud server must be located in a secure Australian data centre.
6.5. Mandatory Data Breach Protection: If We become aware of, or have a reasonable suspicion that there has been any unauthorised access to, or disclosure or loss of, any Personal Information that has been collected from or on behalf of You, directly or indirectly, pursuant to this Agreement We must notify You immediately (“Breach”). In the event of a Breach, We must:
6.5.1. co-operate with You or any appointed authority in relation to any ensuing investigation or enquiry relating to the Breach;
6.5.2. co-operate with You or any appointed authority in relation to the preparation of any determination, statement or notice regarding the Breach, and any notifications to affected individuals; and
6.5.3. co-operate with You or any appointed authority in relation to the provision of information surrounding the circumstances of the Breach, such information which should include: the Personal Information in question; the individuals that are likely to be affected by the Breach; details of the security measures in place and how these may be improved; and all other information relevant for an investigation.
6.6. Notification processes:
6.6.1. In the event of a disagreement between the parties as to whether or not a Notification should be provided, the disagreeing Party shall provide written notice of same to the other Party.6.6.2. We must follow the reasonable direction of You in relation to any interactions We have with any potentially affected individuals.6.6.3. You may also elect to provide a Notification at any time, with notice to Us.6.6.4. The parties agree to work co-operatively and collaboratively during the Notification processes, to come to a resolution regarding whether or not to provide the Notification.6.7. If the Parties cannot agree as to whether or not Notification should be provided, We or You (as the case may be) may make any Notification it believes is required under the relevant Laws.
7.1. Definition of Confidential Information. ‘Confidential Information’ means all information disclosed by a party (‘Disclosing Party’) to the other party (‘Receiving Party’), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Work Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise as required by law or otherwise authorised by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Subject to section 8.3, neither party will disclose the terms of this Agreement or any Work Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Work Orders and the Security Documents will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with applicable Work Orders, and (d) subject to the “Integration with Non-SMT Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-SMT Application or Your use of the Services in violation of this Agreement, the Compliance Documents or applicable Work Orders.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of the Agreement, the Compliance Documents, Work Order or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
11.4. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-SMT Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
11.5. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3, We will refund You any prepaid fees covering the remainder of the term of all Work Orders after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Work Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.6. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
11.7. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-SMT Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.