Background
The Customer wishes to subscribe to Cellr ’s products and engage Cellr to perform certain services, as described in an applicable Statement of Work;
Cellr wishes to provide such products and services in accordance with the terms and conditions below (the ‘Agreement”);
Cellr and the Customer shall be referred to as a “Party” and collectively as “Parties”;
In consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:
ESSENTIAL TERMS AND CONDITIONS
1. Term. This Agreement will be effective as of the date on page 6 (“Effective Date”) and shall remain in force for twelve months (12 months) (the “Term”).
2. Renewal. Subject to termination as set out below, the Agreement shall be automatically renewed for an additional one (1) year (each a “Renewal Term”) on the terms and conditions set out in this Agreement, subject to any amendments agreed upon in writing by both Parties.
3. Termination. Each Party shall have the right to terminate this Agreement at any time, upon providing thirty (30) days written notice of the termination to the other Party, if the other Party is in material breach or default of any provision of this Agreement and, if curable, such breach or default is not cured within sixty (60) days after receipt of notification of such breach or default.
4. Effect of Termination – Payment of Fees. The Customer will pay in full for the product and services provided by Cellr up to and including the last day on which they were provided.
5. Effect of Termination – Customer Materials. Cellr will make all Customer Materials available to the Customer for electronic retrieval for a period of ninety (90) days, but thereafter Cellr may, but is not obligated to, delete stored Customer Materials.
6. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Application. This Agreement is binding on the Parties. This Agreement shall apply to all elements of the Cellr platform used by the Parties during the Term or Renewal Term (the “Platform”).
8. Fees. The Customer agrees to pay the Company the fees as set out for the applicable Platform.
9. Payment Terms. Unless otherwise set out, the Company will enter into a direct debit agreement with the Customer and the Customer will then automatically pay* the monthly fees on a prepaid agreement one (1) month in advance. A $5 fee may be added to your invoice for any payments that defaults through the direct debit, or pre-approval process due to insufficient funds.
*Paying for your subscription using a Credit or Debit Card without a pre-approval will incur a 1.95% +30c per transaction fee to cover the payment gateway costs.
All additional consumables will be billed upfront based on quantities requested, and that invoice will be bound by 7-day terms.
10. Customer Cooperation. The Customer will cooperate with Cellr ’s reasonable requests for information and direction, and on a timely basis will provide Cellr with all materials required to complete the set up and any relevant work on the Platform.
11. Confidentiality. The terms and conditions of the Confidentiality Disclosure Agreement between the Parties are incorporated by reference and form part of this Agreement. If the Parties have not entered into a Confidentiality Disclosure Agreement (“CDA”), the Parties agree to enter into the Company CDA before exchanging any confidential information (as defined in the CDA).
12. Ownership of Customer Materials. All information and materials supplied to the Company by the Customer under this Agreement (the “Customer Materials”) shall remain the property of the Customer.
13. License to Use Customer Materials. The Customer hereby grants The Company a licence to use the Customer Materials for the sole purpose of implementing the Platform and any services set out in all agreements signed by the Parties.
14. Accuracy and Content of Customer Materials. The Customer is solely responsible for the accuracy and content of the Customer Materials. The Company is not responsible for the accuracy and content of the Customer Materials used in any Company product (as designed for the Customer).
15. Indemnity by Customer for Misuse of Cellr Products. The Customer (the “Indemnifying Party”) agrees to indemnify and defend Cellr, its affiliates, and Cellr ’s and its affiliates’ respective officers, directors, employees, shareholders, agents, successors and permitted assigns (each an “Indemnified Person”) harmless from and against any and all claims, losses, damages, liabilities, expenses, costs and charges whatsoever, (including reasonable legal fees) (“Claims and Losses”) resulting from (1) misuse of the Cellr product; (2) a breach by the Customer of the Intellectual Property rights of a third party in any materials included in the Customer Materials; and (3) breach of any privacy laws.
16. Monitoring Use of the Cellr Product. Cellr has no obligation to monitor the use of the Cellr product, but may do so and may prohibit any use of the Cellr product which it believes may be (or may be alleged to be) in violation of this Agreement or any applicable laws.
17. Customer Responsibility for Equipment. The Customer agrees that it will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Cellr product (the “Equipment”).
18. Customer Responsibility for Security of Passwords. The Customer shall be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
19. Cellr Collection and Analysis of Data. Cellr shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Cellr products and related systems and technologies (the “Cellr Data”), and The Company will be free (during and after the term of this Agreement) to (i) use such information and data to improve and enhance Cellr products and for other development, diagnostic and corrective purposes in connection with the services and other Cellr offerings, and (ii) disclose such data solely in aggregate, anonymous, and de identified form that is in no way identifiable with Customer or its business.
20. Ownership of Cellr Products and Software. Cellr shall own and retain all right, title and interest in and to (a) the product and all software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by Cellr in connection with services or support, (c) all intellectual property rights related to any of the foregoing, and (d) the Cellr Data. No rights or licenses are granted except as expressly set out in this Agreement.
21. No Interference with Cellr Products and Software. The Customer agrees that it will not:
(i) attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Cellr products or any software, documentation or data related to the Cellr products (“Software”);
(ii) modify, translate, or create derivative works based on the Cellr products or any Software (except to the extent expressly permitted by Cellr or authorized within the Cellr product);
(iii) use the Cellr products or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party or permit a third party to use the Cellr products;
(iv) remove any proprietary notices or labels from Cellr products or Software.
22. Grant of Licence to use Cellr Product and Software. With respect to any Software that is distributed or provided to the Customer for use on the Customer’s premises, devices or within the Customer’s applications, Cellr hereby grants the Customer a nonexclusive, non-transferable, non-sublicensable license to use such Software during the term of this Agreement and only in connection with the Cellr Platform. Cellr may revoke this license at any time if it determines that the Customer appears to have breached any elements of this Agreement.
23. Product Disruption. Cellr will use reasonable efforts to provide advance notice or any scheduled product disruption. Cellr is not responsible for product disruptions resulting from causes beyond its reasonable control.
24. Warranty Disclaimer. Cellr DOES NOT WARRANT THAT THE Cellr PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Cellr PRODUCT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PRODUCT AND SERVICES ARE PROVIDED “AS IS” AND Cellr DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
25. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR LIABILITY FOR THE BODILY INJURY OF A PERSON OR LIABILITY ARISING FROM Cellr ’s OBLIGATIONS UNDER SECTION 12 (CONFIDENTIALITY), Cellr AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;
(B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;
(C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR
(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE PRODUCT UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26. Privacy Protection. Each Party shall (a) comply with all applicable privacy and data protection laws of its jurisdiction in performing its obligations hereunder; and (b) have the right to terminate this Agreement on thirty (30) days prior written notice to the other if the other Party has breached the foregoing, and such breach is not remedied within said day period.
27. Publicity. Neither Party shall at any time make or issue a press release concerning the Agreement or concerning any other agreements or negotiations between the Parties, unless such Party has obtained the prior written consent of the other Party. Cellr can refer to the Customer as its customer in oral, written communications, and other public announcements (i.e. social media, website etc) without the Customer’s prior written consent. The Parties shall work together in good faith to at least one mutually agreed upon press release within sixty (60) days of the Effective Date, and the Customer agrees to reasonably cooperate with Cellr to serve as a reference account upon request.
28. Miscellaneous.
Headings are for convenience only and do not form part of the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Cellr may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement entered into by the Parties, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement shall be governed by the laws of South Australia without regard to its conflict of laws provisions.
The Parties agree that all matters related to this Agreement, or any dispute between the Parties, shall be subject to the jurisdiction of the courts of South Australia situated in the City of Adelaide.
This Agreement may be executed in counterparts and by means of facsimile or electronic signature. Each of the counterparts, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same Agreement.
Please indicate your acceptance of the above by signing this agreement electronically via the supplied link.
