The Parties agree as follows:
The meanings of the terms used in this Agreement are set out below.
‘Affiliate’ means, in respect of a company or other business entity, any company or other business entity Controlled by, Controlling, or under the common Control of that company or other business entity.
‘Aggregate Data’ means anonymized or aggregated data which is generated, created or otherwise derived through the use of the Services and which does not include any Personal Information.
‘Account Information’ means information about the Client provided to Hapana in connection with the creation or administration of the Client Account. For example, Account Information includes End User names, usernames, phone numbers, email addresses and billing information associated with the Client account.
‘Agreement’ means this document, including the Background, the Order Form (if any) and any Policies set out of referred to in this document.
‘API’ means our application program interface which we may make available to you, depending on the Services you have purchased.
‘Billing Period’, means:
- if the Client purchases a monthly Subscription Plan, one (1) calendar month; or
- if the Client purchases a yearly Subscription Plan, one (1) calendar year; or
- if the Client has entered into an Order Form, the billing period set out in an Order Form.
- if the Client has entered into a Master Licensing Agreement, the billing period set out in a Master Licensing Agreement.
- if the Client has entered into any other agreement stating billing period from time to time.
‘Client Account’ has the meaning given to that term in clause 4.2(a).
‘Client Content’ means Content that the Client or any End User transfers to Hapana for processing, storage or hosting in connection with the Services. Client Content includes Member Data but excludes any Aggregate Data.
‘Commencement Date’ means the earlier of: (i) the date on which an Order Form is executed by the Client; or (ii) the date on which the Client orders Services from the Website; or (iii) the date on which you gain access to the Services.
‘Confidential Information’ has the meaning given in clause 17.1.
‘Consultancy Services’ means the consultancy services (if any) specified in an Order Form or Master Licensing Agreement.
‘Content’ means software (including machine images), data, text, audio, video, or images.
‘Control’ means the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of fifty percent (50%) or more of the voting interest, by contract, or otherwise (and Controlled and Controlling are to be construed accordingly).
‘Documentation’ means the user manuals, installation instructions, reference material and other relevant publication and aids and any updates, replacements, revisions and additions (if any) provided or made available by Hapana or its Affiliates to the Client from time to time in a hard copy, electronic or online format. Documentation excludes any document that is training or marketing material.
‘Early Termination Fee’ means the amount (if any) specified or referred to in to in an Order Form.
‘End User’ means such persons that the Client has authorised to access or use the Client Content or otherwise access or uses the Services under the Client Account.
‘Fees’ means the amounts to be paid by the Client to Hapana for the Services as set out or referred to on our Website or in an Order Form (as applicable).
‘Franchisee’ means any party that is bound by a franchise agreement with the Client or who would otherwise be classified as a franchisee of the Client under applicable laws.
‘Force Majeure’ means any event, occurrence or circumstance that is not within the control of a Party and which, by the exercise of reasonable care, that Party is not able to prevent, overcome or provide against.
GDPR means the EU General Data Protection Regulation (EU) 2016/679 which repeals Directive 95/46/EC.
‘Intellectual Property’ means patents, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, copyright (including rights in computer software) and topography rights; inventions, know-how, secret formulae and processes, lists of customers and suppliers and other proprietary knowledge and information; internet domain names; rights protecting goodwill and reputation; database rights; and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition.
‘Master Licensing Agreement’ (‘MLA’) means a commercial agreement executed by an authorised representative of Hapana setting out commercial details such as the Services to be acquired by the Client, the Fees to be paid and information regarding the number of End Users.
‘Member’ means any individual consumer who you provide fitness related services to or otherwise target or market your fitness related services to.
‘Member Data’ means any data in relation to a Member (including their Personal Information) which you process via our Services.
‘Minimum Term’ means the minimum term (if any), set out or referred to in the Order Form or Master Licensing Agreement.
‘Party’ or ‘Parties’ means each of the Client and Hapana.
‘Order Form’ means an order form executed by an authorised representative of Hapana setting out commercial details such as the Services to be acquired by the Client, the Fees to be paid and information regarding the number of End Users.
‘Payment Method’ means a current, valid payment method accepted by Hapana as a way to process payment of the Fees by the Client. Payment Method includes automatic bank drafts, or payment through a Client Account using a valid credit or debit card or using a third party nominated by Hapana from time-to-time.
‘Personal Information’ has the meaning given to that term in the Privacy Laws.
‘Privacy Laws’ means the Privacy Act 1988 (Cth), the GDPR any other legislation regulating Personal Information but only to the extent it applies to Hapana or the Client (as applicable).
‘Reimbursable Expenses’ means the expenses (if any) to be reimbursed as set out or referred to in an Order Form, MLA or any other agreement.
‘Services’ means the Consultancy Services (if any), Software as a Service and/or other services (if any), included in the Subscription Plan purchased by the Client via our Website, or set out or referred to in the Order Form, MLA or other (as applicable). Services includes any Trial.
‘Software as a Service’ means the software or application which allows fitness providers to manage their business operations which can be accessed via our Client login page via our Website or other mobile applications we make available. Software as a Service includes our API but only where this is expressly included in the Subscription Plan you have acquired.
‘Subscription Plan’ means a package containing specified Services listed on our Website and which is available to be purchased as a subscription model.
‘Trial’ means a limited free trial we may offer so that you can trial our Services before you activate your Client Account.
‘Technical / Operating Environment Requirements’ means the technical and/or operating requirements (if any) as set out or referred to in the Order Form and our Documentation.
‘Term’ means the period specified in clause 2.1.
‘Third Party Contractor’ means any third party contractor (including the third party contractor’s Affiliates and their respective subcontractors) who is engaged by Hapana to assist in delivering the Services, including to host or store the Client Content.
‘Third Party Content’ means Content (if any) made available to the Client directly by any third party in conjunction with the Services.
‘Third Party Terms’ means the third party terms (if any) set out or referred to in the Order Form or which the Client must otherwise comply with to access the Third Party Content.
‘Hapana Content’ means Content that Hapana or any of its Affiliates may make available to the Client in connection with the Services, including the Documentation and other related materials. Hapana Content does not include the Services.
‘Website’ means the URL https://www.Hapana.com/ and any successor or related site designated by Hapana.
In this Agreement, unless the context requires otherwise:
- headings are for convenience only and do not affect the interpretation of this Agreement;
- singular includes plural and plural includes singular;
- words of one gender include any gender;
- reference to a person or a Party includes a corporation, joint venture, association, government body, firm or any other entity;
- reference to a Party includes that Party’s personal representatives, successors and permitted assigns;
- reference to two or more persons means each of them individually and any two or more of them jointly;
- if a Party comprises two or more persons:
- reference to a Party means each of the persons individually and any two or more of them jointly;
- a promise by that Party binds each of them individually and all of them jointly;
- a right given to that Party is given to each of them jointly; and
- a representation, warranty or undertaking by that Party is made by each of them individually;
- the use of the word “include” or its derivative forms shall not imply any limitation;
- a provision must not be construed against a Party only because that Party prepared it; and
- a reference to an agreement, policy procedure, code, legislation or regulation is a reference to any one of those instruments as amended from time to time.
- This Agreement commences on the Commencement Date and continues until terminated in accordance with clause 9 (Term).
Subject to payment of the Fees by the Client in accordance with this Agreement, Hapana will:
(a) perform the Consultancy Services with the degree of skill, care and diligence expected of a competent and qualified professional consultant experienced in providing services of a similar size, scope and nature to the Consultancy Services and, where applicable, so as to comply with any relevant laws; and
(b) subject always to clause 8, 12, 13 and 17.5 use reasonable endeavours to ensure that the Services are available during the Term, for the avoidance of doubt, other than during periods of planned or emergency downtime, power outages, system failures or other interruptions including a Force Majeure, or other events outside of the control of Hapana.
3.2 Information and documents provided by the Client
(a) The Client must, within a time that does not delay Hapana in providing the Services, obtain all necessary licences and make available to Hapana all the information, documents and other details, access and permissions required for Hapana to provide the Services, including any Account Information (Client Information) and must ensure the accuracy, completeness and correctness of the Client Information. For the avoidance of doubt, Hapana will not be required to check the Client Information for accuracy, completeness or correctness and may rely on the Client Information as if it were accurate, complete and correct.
(a) The Client must (and must procure that all End Users) access and use the Services in accordance with this Agreement, all applicable laws, rules, and regulations, including the Policies.
4.2 Client Account
(a) To access the Software as a Service, the Client may be required to create a client account in accordance with the procedures notified by Hapana from time-to-time (‘Client Account’).
(b) The Client agrees that the access rights of any End User (for example on a named or password enabled basis) cannot be shared or used by more than one individual, unless the right is reassigned in its entirety to another individual authorised user in which case the first user shall no longer have any right to access the Software as a Service.
(c) The Client must:
(1) (and must procure that each End User) ensure that any passwords associated with the Client Account are securely stored and not disclosed, other than as permitted under this Agreement; and
(2) immediately notify Hapana in writing if it suspects, or there has been, an unauthorised use of the Client Account or if the Account Information is lost or stolen.
(d) The Client must (and must procure that each End User) allow Hapana or its authorised representative on reasonable notice to access the Client (and each End Users) premises and/or records, data and information which relate to the use of the Service and other obligations under this Agreement, for the purpose of confirming compliance with the terms and conditions of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Client acknowledges and agrees that it is responsible for all activities that occur under its Client Account, regardless of whether the activities are undertaken by the Client, End Users, Members employees or a third party (including the Client’s contractors or agents) and, except to the extent caused by Hapana’ breach of this Agreement, Hapana and its Affiliates are not responsible for unauthorised access to the Client Account.
4.3 Third Party Content
The Client acknowledges and agrees that if any Third Party Content is made available directly to the Client by other companies or individuals under Third Party Terms, including separate fees and charges, the Client is solely responsible for such separate fees and charges and compliance with any relevant Third Party Terms. For example, Hapana uses payment gateways to process payment and does not store or handle any card data details. Third Party Terms from our payment partners may apply to the Client.
5.1 Changes to the Software as a Service
(a) The Client acknowledges and agrees that Hapana may change or discontinue any of the Software as a Service in whole or in part (including the components contained in a Subscription Plan) or change or remove features or functionality of the Software as a Service from time to time.
(b) Hapana will notify the Client of any material change to or discontinuation of the Services.
(c) If the Client does not wish to continue to use and access the Services after being notified of any material changes, it may terminate this Agreement, in accordance with clause 9.2(a).
Without limiting clauses 12 or 13 or the Client’s obligations under clause 7.2, Hapana will maintain reasonable physical, technical and security measures with respect to the security of the Client Content in its possession and control intended to assist in protecting Client Content against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction.
6.2 Data Privacy
(a) In connection with the Services, each Party must comply with the Privacy Laws to the extent they apply to a Party.
(c) The Client acknowledges and agrees that, if the Services include Hapana hosting Client Content, Hapana may use Third Party Contractors to store and host the Client Content and where this is the case the Client consents to the Client Content being disclosed to Hapana’ Third Party Contractors and transferred to, and stored and hosted in, any of the countries in which a relevant Third Party Contractor maintains facilities for hosting or storing the Client Content from time-to-time.
(d) Unless otherwise set out in this Agreement or as necessary to comply with the law or a binding order of a governmental body, Hapana will not:
(1) access or use the Client Content except as is reasonably necessary to maintain or provide the Services; or
(2) disclose the Client Content to any government or third party.
6.3 Aggregate Data
You acknowledge and agree that Hapana:
(a) may create Aggregate Data from the Client Content or otherwise from your (and your End Users) use of the Services.
(b) owns all Aggregate Data and may use such Aggregate Data for any purpose.
7.1 Client Content
(a) The Client acknowledges and agrees that it is solely responsible for the development, content, operation, maintenance, and use of the Client Content, including, without limitation:
(1) the technical operation of the Client Content;
(2) compliance of the Client Content with the Policies, and all applicable laws;
(3) any claims relating to the Client Content; and
(4) obtaining all necessary licences, permissions and consents in respect of the Client Content; and
(5) properly handling and processing notices sent to the Client (or any of its Affiliates) by any person claiming that the Client Content violate such person’s rights, including notices pursuant to any copyright or other Intellectual Property laws.
7.2 Other Security and Backup
The Client acknowledges and agrees that:
(a) it is responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of the Client Content, which may include the use of encryption technology to protect the Client Content from unauthorised access and routine archiving of the Client Content; and
(b) any Client Account credentials, and private keys generated by the Services or otherwise provided by Hapana are for the Client’s personal and internal use only and it must not (and must procure that End Users do not) sell, transfer or sublicense them to any other entity or person.
7.3 End User Violations
The Client acknowledges and agrees that:
(a) it will be deemed to have taken any action that it permits, assists or facilitates any person or entity to take in relation to this Agreement, the Client Content or use of the Services;
(b) it is responsible for End Users’ use of the Client Content and the Service;
(c) it will procure that all End Users comply with the obligations under this Agreement and that the terms of the End User licence agreement (if any) with each End User are consistent with this Agreement; and
(d) if it becomes aware of any violation of its obligations under this Agreement by an End User, it will immediately inform Hapana and terminate such End User’s access to the Client Content and the Services.
7.4 End User Support
Unless expressly agreed in writing otherwise, the Client is responsible for providing customer service (if any) to End Users and Hapana does not provide any support or services to End Users.
(a) Hapana may suspend the Client or any End User’s right to access or use any portion or all of the Services immediately upon notice to the Client if we determine:
(1) the Client or an End User’s use of or registration for the Service (i) poses a security risk to the Service or any third party; (ii) may adversely impact the Service or the systems or Content of any other Hapana customer; (iii) may subject us, our Affiliates, or any third party to liability; or (iv) may be fraudulent;
(2) the Client or any End User is, in breach of this Agreement, including if the Client is overdue on any payment obligations for more than 15 calendar days, provided we have provided 15 calendar days prior written notice via email or mail of such overdue payment; or
(3) the Client has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.
8.2 Effect of Suspension
(a) If Hapana suspends the Client’s right to access or use any portion or all of the Services, the Client:
(1) will remain responsible for all Fees and charges it has incurred for the Services up to and including the date of suspension; and
(2) will remain responsible for any applicable Fees and charges for any Services to which it continues to have access, as well as applicable data storage fees and charges, and fees and charges for in-process Services or tasks completed after the date of suspension;
(b) Hapana right to suspend your or any End User’s right to access or use the Services is in addition our right to terminate this Agreement pursuant to clause 9.
Unless otherwise set out in an Order Form, the term of this Agreement will commence on the Commencement Date and will remain in effect until terminated in accordance with clause 9.2 (Term).
(a) Termination for Convenience
(1) Subject to the payment of all outstanding Fees, and unless otherwise set out in an Order Form or MLA, the Client may terminate this Agreement for any reason by: (i) providing Hapana 30 days’ advance notice in writing; (ii) cancelling a Subscription Plan at any time; or (iii) closing the Client Account for all Services for which we provide an account closing mechanism; and, if such termination occurs before the expiry of the Minimum Term (if any), paying Hapana the Early Termination Fees.
(2) Hapana may terminate this Agreement for any reason after expiry of the Minimum Term (if any), by providing you 30 days’ advance notice in writing unless otherwise set out in an Order Form or MLA.
(b) Termination for Cause
(1) Either party may terminate this Agreement for cause upon 30 days advance notice in writing to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
(2) Hapana may also terminate this Agreement immediately upon notice to the Client: (i) if we are unable to collect the Fee from your nominated Payment Method for any reason; (ii) for cause, if any act or omission by the Client or any End User results in a suspension described in clause 8; (iii) if our relationship with a Third Party Contractor who provides software or other technology we use to provide the Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Services; (iii) if Hapana believe providing the Services could create a substantial economic or technical burden or material security risk for Hapana, (iv) in order to comply with the law or requests of governmental entities; or (v) if we determine use of the Services by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.
9.3 Effect of Termination
Upon any termination of this Agreement:
(1) all your rights under this Agreement immediately terminate;
(2) the Client remains responsible for all Fees (including any Early Termination Fees) and charges it has incurred up to and including the date of termination, including Fees and charges for Services provided, up to and including the date of termination, including Reimbursable Expenses and any reasonable and unavoidable costs incurred by Hapana as a direct result of the termination, including but not limited to any amounts Hapana is committed to pay any third party; and
(3) the Client will immediately return or, if instructed by Hapana, destroy all Hapana Content in its possession.
Termination of this Agreement for whatever reason does not affect the ability of either Party to enforce a right that may have accrued to it under this Agreement prior to the date of termination.
(b) Post-Termination Assistance
The Client acknowledges and agrees that Hapana is not required to provide to the Client or keep a copy of any Client Content following expiry or termination of the Agreement. Any form of post-termination assistance from Hapana (such as providing a copy of any part of the Client Content) is not covered by the Fees and is subject to mutual agreement between the Parties, including as to costs. However, where requested in writing (such request must be made at least 30 days before expiry or termination of the Agreement) Hapana will assist to manually extract, transfer and provide a copy of the Client Content to the Client for a minimum Fee of AUD $400 (plus sales tax) for 2 hours work and AUD$200 (plus sales tax) per hour thereafter or at Hapana’s current schedule rates at the time the Client makes the request.
10.1 Client Content
(a) As between the Client and Hapana, the Client or its licensors own all right, title, and interest in and to the Client Content. Except as provided in this clause 10, we obtain no rights under this Agreement from you or your licensors to the Client Content, including any related Intellectual Property rights.
(b) The Client grants to Hapana a non-exclusive, sub-licensable, royalty free licence to use the Client Content to provide the Services to the Client and any End Users in accordance with this Agreement.
(c) In addition, the Client grants to Hapana a non-exclusive, sub-licensable, royalty free licence to use, copy, modify, display and distribute any anonymous information derived from Client Content, including to improve our offering and potentially offer new services.
10.2 Adequate Rights
(a) You represent, warrant and undertake to us that:
(1) you or your licensors own all right, title, and interest in and to the Client Content and your Submissions;
(2) you have all rights in Client Content necessary to grant the rights contemplated by this Agreement; and
(3) none of the Client Content or End Users’ use of the Client Content, or the Services will violate the Acceptable Use Policy.
10.3 Hapana Intellectual Property Rights
(a) As between you and us, we or our Affiliates or licensors own and reserve all right, title, and interest in and to the Services and Hapana Content. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable licence to do the following during the Term:
(1) access and use the Services and Documentation solely in accordance with this Agreement; and
(2) copy and use the Hapana Content solely in connection with your permitted use of the Services.
(b) Except as provided in this Section 10.3, the Client obtains no rights under this Agreement from Hapana or our licensors to the Services or the Hapana Content including any modifications, enhancements or customisations of the Services or the Hapana Content made for the Client, including any related Intellectual Property rights.
(c) The Client must absolutely assign and transfer (and will procure that its End Users and personnel assign and transfer) to Hapana with full title guarantee all existing and future Intellectual Property Rights throughout the entire world in any modifications, enhancements or customisations of the Services or the Hapana Content made for the Client, including any related Intellectual Property rights.
10.4 Licence Restrictions
(a) The Client must not (and must procure that each End User does not) use the Service or Hapana Content in any manner or for any purpose other than as expressly permitted by this Agreement.
(b) The Client must not (and must procure that each End User does not) attempt to:
(1) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services;
(2) reverse engineer, disassemble, or decompile any of the Services or apply any other process or procedure to derive the source code of any software included in the Services (in each case except to the extent these things cannot be prohibited under applicable law);
(3) access or use the Services in a way intended to avoid incurring Fees or exceeding usage limits or quotas; or
(4) resell or sublicense the Service.
(c) All licences granted to you in this Agreement are conditional on your continued compliance with this Agreement and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
(d) During and after the Term, the Client must not assert, nor will it authorise, assist, or encourage any third party to assert, against us or any of our Affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service it has used.
The Client will defend, indemnify, and hold harmless Hapana, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including legal fees on a solicitor-client basis) arising out of or relating to any third party claim concerning:
(a) the Client or any End Users’ use of the Service (including any activities under your Client Account and use by your employees and personnel);
(b) violation of the Policies or applicable law by the Client or any End User;
(c) the Client Content or the combination of the Client Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party intellectual property or other rights by the Client Content or by the use, development, design, production, advertising or marketing of the Client Content; and
(d) a dispute between the Client and any End User.
If we or our Affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, the Client must reimburse us for reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
THE SERVICES ARE PROVIDED “AS IS”. WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING THE CLIENT CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORISED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE FIRST CLAIM DURING THE 12 MONTHS PRECEDING THE FIRST CLAIM.
(a) Nothing in this Agreement, including clauses, 11 (Indemnification), 12 (Disclaimer) and 13 (Limitation of Liability) is intended to exclude, restrict or modify the application of any consumer statutory rights which apply to you or any End User to the extent such exclusion, restriction or modification is not permitted by the relevant consumer statutory laws including under the Consumer Act 2010 (Cth) or any other applicable legislation (Statutory Laws).
(b) If the Statutory Laws provides the Client or any End User with any non-excludable statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees) in respect of any goods or services supplied under this Agreement, then the exclusions of and limitations on the Client’s liability in this Agreement do not apply in respect of such non-excludable statutory rights, however, where the Client’s liability with respect to such non-excludable statutory rights may be restricted or modified, then, without prejudice to any non-excludable statutory rights that the Client may have which may not be restricted or modified by agreement, the liability is limited to: (i) in the case of a supply of goods, Hapana doing any one or more of the following (at its election): replacing the goods or supplying equivalent goods; repairing the goods; paying the cost of replacing the goods or of acquiring equivalent goods; or, paying the cost of having the goods repaired; and (ii) in the case of a supply of services, Hapana doing either or both of the following (at its election): supplying the services again; or, paying the cost of having the services supplied again.
Hapana may modify this Agreement (including any Policies) at any time to reflect aspects of its agreements or arrangements with its Third Party Contractors, by posting a revised version on our Website or by otherwise notifying you in accordance with the notice provisions of this Agreement. If you do not accept any of the modifications to the Agreement, you may terminate this Agreement under clause 9.2(a)(1) (and any Early Termination Fees will not apply).
16.1 Entitlement to Fees
In consideration of the provision of the Services by Hapana, the Client must pay Hapana the Fees and all Reimbursable Expenses (if any).
16.2 Fees and Payment
(a) Client to nominate Payment Method
The Client must nominate a Payment Method at the time the Client enters into an Order Form, purchases a Subscription Plan or signs up for a Trial via the Website.
(b) Client to authorise automatic payment to Hapana for Subscription Plans
The Client authorises Hapana to charge the Fees via the Client’s nominated Payment Method automatically and in advance:
(1) on the first day of each Billing Period during the Term; or
(2) in accordance with the terms set out in the Order Form,
(c) Billing Periods
The first Billing Period begins on:
(1) the day the Client purchases a Subscription Plan; or
(2) where the Client has signed up for a Trial, the day after the Trial expires; or
(3) the date specified in the Order Form.
Each subsequent Billing Period begins on the day after the previous Billing Period ends. Billing Periods renew automatically until this Agreement is terminated in accordance with clause 9.
(d) Fees for Subscription
All Fees for Subscription Plans are inclusive of applicable taxes and duties, excluding applicable sales tax. We will provide you with a tax invoice for the Fees paid in respect of each Billing Period on the date of payment.
(e) Taxes for other Fees
Hapana may also stipulate in the Order Form that certain Fees are exclusive of applicable taxes and duties, including applicable sales tax. In such a case, you will provide us any information we reasonably request to determine whether we are obligated to collect sale tax from you, including your identification or registration number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates or documentation for each taxing jurisdiction. We will apply the tax exemption certificates or documentation to charges under your account occurring after the date we receive the tax exemption certificates or documentation. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
(f) Tax invoices for Consultancy Services
Hapana may, from time-to-time, submit tax invoices in respect of:
(1) the Fees for the Consultancy Services;
(2) any Reimbursable Expenses incurred; and
(3) any other amounts for which the Client is liable under this Agreement which are incurred by Hapana, in accordance with the Payment Terms contained in the Order Form or otherwise.
(g) Client to pay Hapana
The Client agrees to pay all invoices submitted in accordance with clause 16.2(a) within  days of the date of the relevant invoice.
(h) Set Off and Withholding
All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
(i) Updated Fees and charges
Fees and charges for the Subscription Plans or any new service or new feature of a service related to the Software as a Service will be effective when we post updated Fees and charges on the Website unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days’ advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
(j) Disputed amount
If the Client genuinely disputes any part of the invoice submitted by Hapana, the Client must pay the undisputed balance in full, and the amount in dispute must be resolved by the Parties in good faith. In the event that any part of a disputed amount is subsequently agreed or determined to be due to Hapana, then the Client must pay the disputed amount withheld together with any accrued interest in accordance with clause 16.2(a).
17.1 Confidential Information
Each Party must:
(a) keep secret and confidential; and
(b) not disclose to a third party without the other Party’s prior written consent (which will not be withheld if the disclosure is otherwise required by law),
any and all information, designs, data, specifications, drawings, reports, accounts or other documents or things which are expressly provided or made available on a confidential basis or, by their nature, could reasonably be expected to have been provided or made available on a confidential basis:
(c) supplied or made available by one Party to the other in relation to the Services or this Agreement; or
(d) brought into existence by Hapana in performing or for the purpose of performing the Services,
Each Party must take or cause to be taken all reasonable precautions necessary to maintain secrecy and confidentiality and prevent disclosure of the Confidential Information of the other Party, provided that either Party may disclose the Confidential Information of the other in order to comply with law, the orders of any Court of competent jurisdiction, or the mandatory requirements of any recognised securities or stock exchange.
(a) Subject to clause 17.3(b), neither Party may advertise, publish or release to the public:
(1) any Confidential Information of the other Party; or
(2) any Confidential Information concerning this Agreement, the Services, or the project, without the other Party’s prior written consent.
(b) The Client acknowledges that clause 17.3(a) does not apply to any business development or marketing materials produced or released by Hapana referring to the Client, the project or the scope of the Services.
(a) Notwithstanding any other provision of this Agreement, each Party may retain a copy of any and all documents, materials or things furnished to it under this Agreement (including any Confidential Information) on a confidential basis for its records, internal auditing purposes or in order to satisfy its obligations under any applicable laws.
(b) The Parties acknowledge and agree that the obligations of confidentiality set out in this clause 17 survive:
(1) termination or expiry of this Agreement, for a period of 5 years; and
(2) in respect of any information retained under clause 17.4(a), for so long as such information is so retained.
17.5 Force Majeure
(a) Neither Party is responsible for any failure to perform its obligations under this Agreement if it is prevented or delayed in performing those obligations by an event of Force Majeure. For the avoidance of doubt, an event of Force Majeure does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which was due and payable prior to the occurrence of that event.
(b) If an event of Force Majeure occurs, then, as soon as reasonably practicable, each Party agrees to give the other Party written notice of reasonably full particulars of the event, occurrence or circumstances of Force Majeure, as well as the steps taken to minimise its effects, and use all reasonable diligence and employ all reasonable means to remedy, abate or mitigate the effects of Force Majeure as expeditiously as possible.
(a) A Party must not assign, novate or otherwise deal with its rights or obligations arising under or in connection with this Agreement (whether in whole or in part), without the prior written consent of the other Party.
(b) The Parties acknowledge that any consent provided by a Party may be withheld or made subject to such conditions as the consenting Party decides (in its discretion acting reasonably).
(c) The Client acknowledges and agrees that Hapana may:
(1) subcontract any part of the Services to a third party without the consent of the Client; and
(2) appoint any officer or employee of any Affiliate of Hapana to perform any part or all of the Services.
(d) For the avoidance of doubt, Hapana will not be relieved from any liability or obligation under this Agreement by virtue of a subcontract arrangement.
(a) An Order Form, these Terms and Conditions and any other part of this Agreement may be executed via an online process or by way of electronic signature or other method and may be executed in counterparts, all of which taken together constitute one Agreement.
(b) This Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the Parties in respect of its subject matter.
(c) Nothing in this Agreement is to be construed as creating, or evidence of, a partnership between the Parties.
(d) Any provision of this Agreement, which is or becomes illegal, void, voidable or unenforceable, will be ineffective to that extent without affecting or invalidating the remaining provisions of this Agreement.
(e) We may provide any notice to you under this Agreement by posting a notice on our Website or sending a message to the email address then associated with your Client Account. Such notices will be effective from the time posted on our Website or from when we send the email (as applicable).
(f) A notice or other communication under this Agreement by the Client (Client Notice) may be sent by any method prescribed by the Hapana Website or by sending a message to our designated email address. A Client Notice is deemed to be effective from the date it is received by us (unless an answerback code or error message is received by the sender which indicates the email transmission has not been successful).
(g) This Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. A Party may execute this Agreement by signing any counterparts.
(h) This Agreement is governed by the laws of New South Wales, Australia. The Parties irrevocably submit to the non-exclusive jurisdiction of courts of New South Wales Australia) and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each Party irrevocably waives any objection to the venue of any legal process in the se courts on the basis that the process has been brought in an inconvenient forum.
(i) No Party may rely on the words or conduct of the other Party as waiver of any right unless the waiver is in writing and signed by the Party granting the waiver.
(j) Clauses 1, 16, 9.3, 10 (except any licence granted to the Client under that clause), 11, 12, 13, 14, 15, 17, 18, 19, and any other obligations which are expressed to or, by their nature, survive expiry or termination of this agreement and are enforceable at any time at law or in equity.
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.