Terms and Conditions

This Master Subscription and Services Agreement (“Agreement”) is made on the date set out in the Order Form (the “Effective” Date) by and between Redcat Pty Ltd (ABN 88 090 409 920) of Level 1, 51 Stephenson Street, Cremorne, Victoria, Australia, 3121 (Redcat), and the entity identified in the Order Form (Customer), individually a “Party” and collectively the “Parties”.

 

The Parties agree as follows:

 

1. DEFINITIONS

Capitalised terms will have the meanings provided in this section or as specified in the body of the MSSA.

"Account" means all Redcat accounts or accounts created by the Customer, on its behalf or by an End User within the SaaS Platform.

“Agreement” means this MSSA, and unless the context requires otherwise, includes all Order Forms, and any addendums, exhibits or attachments to any of them.

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“API” means application programming interface that permits Users to access certain functionality provided by the SaaS Platform .

“Cloud Services” means the RedCat cloud service(s) specified in the Order Form(s) and includes the online, web based Point of Sale platform, tools and services offered on the Redcat Website including the software, the API and any Documentation as well as any modification, update or enhancement.

“Content” means information obtained by Redcat from publicly available sources or its third party content providers and made available to Customer through the Services

"Customer Data" means all electronic data or information (including Personal Data) provided by the Customer or any of its Users that is stored in, or run on or through, the Services but excludes the Services, Redcat Intellectual Property and Content.

"Data Breach" means any actual or suspected accidental or unauthorised access to, alteration or modification, use, misuse, loss, interference or unauthorised disclosure of, Customer Data.

"Disabling Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Documentation” means any proprietary information or documentation made available to Customer by Redcat for use with the Cloud Services and SaaS Platform, including any documentation available online through the SaaS Platform dashboard or otherwise.

"Eligible Data" Breach has the meaning given to that term in the Privacy Act.

"End User" means an individual authorised to use the SaaS Platform through the Customer’s Account as an administrator, staff member or service provider as identified through a unique login.

"Intellectual Property Rights" means all present and future intellectual property rights (including, without limitation, all registered and unregistered designs, copyright, moral rights, trademarks and patents) and any technology, software, programming code, source code, data, applications, programs, inventions, documents, trade secrets, works, subject matter, lists, User details and information.

“MSSA” means this Master Subscription and Services Agreement.

“Non-Redcat Application” means a Web- based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Customer or a third party.

"Order Form" means each Redcat ordering document signed by duly authorized representatives of both Parties which references this MSSA, identifies the Services ordered by Customer from Redcat, sets out the prices for the Services, and contains other applicable information, obligations and any additional terms and conditions (if applicable).

‘Personal Information’ or ‘Personal Data’ has the meaning given to that relevant term in the applicable Privacy Laws.

"Privacy Act" means the Privacy Act 1988 (Cth) (including the Australian Privacy Principles), as amended, updated or replaced from time to time.

"Privacy Laws" means laws in force with respect to the privacy of personal information in any jurisdiction, including the Privacy Act, the SPAM Act (2003), the Do Not Call Act 2006 (Cth) (and all applicable State and Territory-based legislation in Australia), together with all privacy rules, codes, guidance and/or related orders and/or directives issued by any regulator under privacy laws from time to time, and any amendments, updates or replacements to any or each of them.

“Professional Services” means configuration, implementation, transition and/or training, and any other professional services, as may be described in an Order Form.

"SaaS Platform" means the use of any or all of the Website or Cloud Services as ordered by Customer pursuant to this Agreement and as specified in one or more Order Forms.

“Services” means, collectively, the provision of the SaaS Platform, the Cloud Services and the Professional Services specified in one or more Order Forms. Services exclude Content and Non-Redcat Applications

“SLA” means Redcat’s Service Level Agreement attached to this MSSA or an Order Form.

“Term” means the time period for the provision of the Services, as specified in an Order Form.

"User" means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription, and to whom Customer (or, when applicable, Redcat at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

 

Website means www.redcatht.com and other websites through which Redcat makes its services available to Customer and its Users.

 

2. ORDERS & SERVICES

2.1   Order Form: From time to time, Redcat will provide the Customer with an Order Form specifying the Services and any other relevant terms and conditions for providing such Services. A Order Form is not binding unless and until such time as it is executed by both parties or otherwise agreed in writing. On and from the date when an Order Form is executed or agreed a separate legally binding agreement is formed between the parties for the purchase of the Services specified in that Order, which incorporates and is subject to the terms of this MSSA.

 

2.2   Provision of Services. Redcat will provide the Services to the Customer in accordance with this MSSA and the relevant Order Form during the Term. Services will comply with the specifications set out in the applicable Order Form, and substantially in accordance with the specifications set out in the SLA.

 

2.3   Users. The Customer may allow its Users to use the Services for the purpose stated in clause 2.1, and the Customer is responsible for their compliance with this MSSA and any Order Form.

 

2.4   Third Party Applications. Redcat may offer Customer the ability to use Non-Redcat Applications in combination with the Services such as third party food delivery and delivery platforms. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non- Redcat provider, product or service is solely between Customer and the applicable Non- Redcat provider. Redcat is not responsible for and does not warrant or support Non- Redcat Applications or other Non-Redcat products or services, whether or not they are designated by Redcat as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Redcat is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Redcat Application or its provider.

 

2.5   The Services may contain features designed to interoperate with Non-Redcat Applications. Redcat cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non- Redcat Application ceases to make the Non- Redcat Application available for interoperation with the corresponding Service features in a manner acceptable to Redcat.

 

3. RESPONSIBILITIES AND RESTRICTIONS

3.1  Redcat Responsibilities. Redcat will provide the Customer with (a) access to the SaaS Platform and applicable Cloud Services during the Term in accordance with this MSSA, the applicable Order Form and Documentation (b) provide applicable Redcat standard support for the purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Redcat shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Redcat’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, pandemic, civil unrest, act of terror, strike or other labor problem (other than one involving Redcat employees), internet service provider failure or delay, Non-Redcat Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Redcat’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this MSSA, the Documentation and the applicable Order Form.

 

3.2  Customer Responsibilities. Customer is responsible for all activity that occurs under Customer’s Accounts by or on behalf of Customer or its Users. Customer agrees to: (a)  be solely responsible for all User activity, which must be in accordance with this MSSA and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the Redcat obligations set out in the Agreement) (c) obtain and maintain during the Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorised access to, or use of, the Services and notify Redcat promptly of any known unauthorised access or use, and (e) use the Services only in accordance with applicable laws and regulations.

 

3.3  Restrictions. Customer will not (a) make any Service or Content available to anyone other than its Users, or use any Service or Content for the benefit of anyone other than Customer or its Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) interfere with or disrupt the integrity or performance of the Cloud Services, SaaS Platform or any third-party application or third-party data or content contained therein, or (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.

 

4. Privacy

4.1  Privacy Policy

1. Redcat collects and uses Customer Data in accordance with the Redcat Privacy Policy.

2. If the performance of rights and obligations under this MSSA involves the handling of any Personal Information, both parties must:

   1. comply with all applicable provisions of the Privacy Laws;

   2. use the Personal Information only for the purposes of performing its obligations or exercising its rights under this MSSA;

   3. notify the other party if it will transfer that Personal Information outside Australia or allow persons outside of Australia to have access to that Personal Information;

   4. take all reasonable steps to ensure that such Personal Information is protected against misuse, loss and unauthorised access; and

   5. without undue delay, notify the other party if it becomes aware of a breach of any Privacy Laws in connection with this MSSA.

4.2 Customer obligations

Customer must, in addition to the obligations in Section 4.1:

1. provide all required notices in accordance with applicable Privacy Laws to individuals (including its end-users and Personnel) from whom it collects Personal Information;

2. procure and ensure that all necessary consents and/or permissions are procured and are maintained in place from individuals (including its end-users and Personnel) to authorise the transfer and sharing of their Personal Information to Redcat, as required by Privacy Laws; and

3. ensure that any Personal Information shared with Redcat is complete, accurate and up to date at all times; and

4. ensure that all necessary consents and/or permissions are procured and maintained in place from individuals (including its end-users and Personnel) to authorise collection, use, storage and handling of Customer Data by Redcat as contemplated by the MSSA.

4.3           Data Breach Notification

1. Each party must notify the other promptly (and in any event, without undue delay) where it becomes aware of any Data Breach.

2. Without limiting the above, Redcat will:

3. notify Customer of a Data Breach without undue delay after becoming aware of it; and

4. take reasonable steps to mitigate the effects and to minimise any damage resulting from the incident, where practicable to do so.

5. Further, to assist Customer in relation to any personal data breach notifications Customer is required to make under applicable Privacy Laws, including the Privacy Act, Redcat will:

6. include in the above notification such information about the incident as Redcat is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to Redcat, and any restrictions on disclosing the information, such as confidentiality; and

7. on demand and at Customer cost, provide reasonable co-operation and assistance to Customer in respect of any investigation into the Data Breach, including in respect of the determination of whether it constitutes an Eligible Data Breach under Privacy Laws.

8. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information and that this is provided to Redcat to allow secure transmission of any notification above at all times.

9. Customer further acknowledges and agrees that it will:

1. 1. not disclose to any third party (including the Office of Australian Information Commissioner, or other regulator) the existence or circumstances surrounding the Data Breach, without first notifying Redcat of the purpose and content of any such disclosure and providing a copy of any notification for prior approval by Redcat, and

   2. take into account all reasonable comments and changes requested by Redcat and amend any such notification or disclosure in the manner requested by Redcat.

 

5. OWNERSHIP & LICENSING

5.1  Customer Ownership. Customer retains all right, title and interest in and to Customer Data. Redcat may use Customer Data in order to provide the Services.

 

5.2  Redcat Ownership. Redcat and its licensors retain ownership in all Intellectual Property Rightsin and to the Services and the Content, and their underlying and related technology, software, patents, know-how and associated documentation, in whole or in part, including all improvements, enhancements, modifications, and derivative works developed or delivered by or on behalf of Redcat under this Agreement (together, “Materials”). RedCat reserves all Intellectual Property Rights to the Cloud Services, SaaS Platform, Software (defined below) and Materials that are not expressly granted under this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

5.3  Software Licence and Restrictions. To use the Cloud Services, Customer may be required to download and install a Redcat proprietary agent, plug-in or similar software (“Software”). Redcat grants Customer a limited, non-exclusive, non-sublicensable and non-transferable license to use the Software and Content solely as required to use the Cloud Services. The Software may contain open source code that is subject to its own license terms. With respect to Customer’s use of the Software, Customer may not and may not allow a third party to modify, reverse engineer, decompile, or otherwise attempt to derive the source code for the Software, or create derivative works of the Software except as legally required for interoperability purposes.

 

5.4  Licence by Customer. Customer grants Redcat, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Redcat Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Redcat to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-Redcat Application with a Service, Customer grants Redcat permission to allow the Non-Redcat Application and its provider to access Customer Data and information about Customer’s usage of the Non-Redcat Application as appropriate for the interoperation of that Non-Redcat Application with the Service. Subject to the limited licenses granted herein, Redcat acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Redcat Application or such program code.

 

5.5  Feedback. Redcat welcomes feedback and suggestions about the Services and looks for ways to implement them where possible. Customer authorizes Redcat to use feedback and ideas provided in connection with the use of the Services for any purpose without further obligation.

 

6. FEES AND PAYMENT

6.1  Fees. Customer will pay all fees specified in all Order Forms (“Fees”) for the Services. Customer will also reimburse Redcat for all reasonable travel and living expenses incurred in the performance of Professional Services, provided that any material expenses will be subject to approval in advance by Customer. Except as otherwise specified herein or in an Order Form, (a) Fees will be quoted and paid in Australian dollars and (b) payment obligations are non- cancelable and Fees paid are nonrefundable and (c) quantities purchased cannot be decreased during the relevant subscription Term.

 

6.2 Invoicing and Payment. If a purchase order is required by Customer, Customer will provide Redcat with a valid purchase order within five (5) days from the execution of the applicable Order Form. Any terms and conditions on any purchase order will not be deemed a part of this Agreement or otherwise binding on Redcat. Redcat will invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net thirty (30) days from Customer’s receipt of the invoice. Customer is responsible for providing Redcat with complete, accurate and up to date billing and contact information. Redcat will provide invoices on a monthly basis.

 

6.3  Overdue Fees. If any Fees are not received from Customer by the due date, then at Redcat’s discretion, such Fees may accrue late interest at the rate of 0.75% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

 

6.4  Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees for the Services or any of them are thirty (30) or more days overdue, Redcat may, without limiting Redcat’s other rights and remedies, suspend access to or use of any of the Services until such amounts are paid in full.

 

6.5  Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify Redcat in writing and provide sufficiently detailed support of any invoice dispute within ten (10) business days of Customer’s receipt of invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section will be deemed to waive Customer’s obligation to pay any undisputed amounts in accordance with Section 5.2 (Invoicing and Payment).

 

6.6  Taxes. The Fees are exclusive of all taxes, levies, GST, duties or similar governmental assessments of any nature (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on Redcat’s net income, property, or employee withholdings. Taxes will not be deducted from the payments to Redcat, except as required by law, in which case the amount payable will be increased as necessary, so that after making all required deductions and withholdings, Redcat receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.

 

6.7  Audit Rights. Redcat will have the right to audit Customer’s compliance with this Agreement at any time during the Term. Customer will cooperate following any reasonable request by Redcat in connection with such audit. If Redcat determines that Customer has allowed access to the Services other than as permitted under this MSSA or any Order Form or has otherwise violated any applicable terms hereof or thereof, and as a result additional Fees are owed to Redcat, Redcat will invoice Customer for such discrepancies and such Fees will be payable pursuant to the terms of this Agreement. The results of any audit will not limit any other rights or remedies of Redcat.

 

7. CONFIDENTIALITY

7.1  Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Discloser") to the other Party ("Recipient"), 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. Customer Confidential Information will include, but is not limited to, Customer Data; Redcat Confidential Information includes, but is not limited to, the SaaS Platform, information or technology used in connection with the Services, this MSSA and all Order Forms; and Confidential Information of each Discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.

 

7.2  Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will: (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those in this Agreement.

 

7.3 Data security

1. Without limiting the above, Redcat will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except:
   

   1. in order to provide the Services;

   2. to prevent or address service or technical problems in connection with support matters; or

   3. as expressly permitted in writing by Customer, Redcat will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Section 6.4 (Compelled Disclosure)).

   
   
   

2. Without limiting any other provision of this MSSA, Customer must maintain commercially reasonable technical, administrative, organisational and physical steps to ensure that:

1. 1. the Customer Data held by Customer in connection with this MSSA is protected against Data Breach; and

   2. only authorised Customer Personnel have access to the Customer Data at any time

 

7.4  Compelled Disclosure. Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser's cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

7.5 Monitoring: Redcat continuously monitor the Services to facilitate Redcat’s provision or operation of the Services; to help resolve service requests; to detect and address threats to the functionality, security, integrity, and availability of the Services as well as any content, data, or applications in the Services; and to detect and address illegal acts or violations of this Agreement. Redcat monitoring tools do not collect or store any Customer Data residing in the Services, except as needed for such purposes.

 

7.6  Statistical Data: Redcat may (a) compile statistical and other information related to the performance, operation and use of the Services, and (b) use data (including Customer Data) from the Services in aggregated form for security and operations management, to create statistical analyses, for research and development purposes, and to develop other services and/or products provided Redcat de-identifies the data (clauses (a) and (b) are collectively referred to as “Statistical Data”). Redcat may make Statistical Data publicly available; however, Statistical Data will not incorporate Customer Data or Confidential Information in a form that could serve to identify the Customer, any User or any other individual. Redcat retains all Intellectual Property Rights in Statistical Data.

 

8. INDEMNIFICATION

8.1 Indemnification by Redcat. Redcat will defend, indemnify and hold harmless Customer against any third party claim that a Cloud Service infringes such third party’s patent or copyright (a "Claim") and will indemnify the Customer against the final judgment entered by a court of competent jurisdiction or a settlement arising out of such Claim. Redcat will have no obligation for any Claim to the extent such Claim is based on (i) a modification of the Cloud Service by Customer or a third party, or use of the Cloud Service outside the scope of this Agreement;

(ii)    combination, operation, or use of the Cloud Service with non-Redcat products, software, services or business processes;

(iii) Customer Data; or (iv) services Customer provides based on the Cloud Service. Customer must: (a) promptly notify Redcat in writing of the Claim (or threat of a Claim), and any subsequent litigation updates, and (b) cooperate with Redcat in the defence of the Claim (including any statements to third parties regarding the Claim), and (c) grant Redcat full and exclusive control of the defense and settlement of the Claim and any subsequent appeal. If Customer fails to notify Redcat promptly of the Claim or provide timely subsequent litigation updates, and that failure prejudices Redcat’s ability to defend, settle or respond to the Claim, then Redcat’s obligation to defend or indemnify Customer with respect to that Claim will be reduced to the extent Redcat has been prejudiced. In addition, such failure to provide prompt notification will relieve Redcat of any obligation to reimburse Customer for any legal fees incurred prior to notification. If a Claim is made or appears likely, Redcat may, at Redcat’s option, (1) procure for Customer the right to continue using the Cloud Service under the terms of this Agreement, or (2) replace or modify the Cloud Service to be non-infringing without material decrease in functionality. If Redcat determines that neither of these options are reasonably available, Redcat may terminate the applicable Cloud Service upon written notice to Customer, and refund Customer a pro rata portion of the price Customer paid for the Cloud Service for the remainder of the unexpired term. This section states Redcat’s entire obligation and Customer’s exclusive remedy regarding any Claims against Customer.

 

8.2  Indemnification by Customer. Customer will defend, indemnify and hold harmless Redcat against any Claim made or brought against Redcat by a third party (a) relating to or arising from Customer’s use of the Services in violation of this Agreement, or (b) alleging (i) that any Customer Data or Customer’s use of Customer Data with the Services, (ii) a Non-Redcat Application provided by Customer, or (iii) the combination of a Non-Redcat Application provided by Customer and used with the Services, infringes or misappropriates such third party’s Intellectual Property Rights or breaches privacy, or publicity right of a third party; provided that Redcat (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Redcat’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Redcat of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s expense.

 

9. WARRANTIES AND LIABILITY

9.1 Redcat Warranty. Unless otherwise provided in an applicable Order Form, Redcat warrants that it provides the Services in accordance with the Order using commercially reasonable skill and care. Upon prompt notification by Customer of Redcat’s breach of this warranty, to the extent permitted by applicable law, Customer’s sole and exclusive remedy is, at Redcat’s option, either supplying the Service again or a refund of the fees paid to Redcat for the period in which the Cloud Service did not materially comply. Except as expressly stated in this section 8.1, to the extent allowed by applicable law, Redcat: (i) expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, or fitness for a particular purpose or non-infringement; and (ii) makes no warranty or representation that: (1) the Cloud Services will be uninterrupted, completely secure, error-free, or free of viruses; or (2) the Cloud Services will meet Customer’s business requirements or operate with Customer’s existing systems.

 

9.2  Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and (c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement.

 

9.3  Limitation of Liability. Except for any amounts due to Redcat for the Services, each party’s total aggregate liability for any losses, costs or damages suffered or incurred by the other party in connection with this Agreement is limited to the amounts paid or payable to Redcat by the Customer in the 12-month period preceding the event that gave rise to the loss, cost or damage. In no event will either party be liable for (i) indirect, incidental, exemplary, special or consequential damages; (ii) loss or corruption of data or interrupted or loss of business; or (iii) loss of revenues, profits, goodwill or anticipated sales or savings. This limitation of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement, or otherwise, even if either party has been advised of the possibility of such damages.

 

9.4  To the extent permitted by law, Redcat excludes all conditions and warranties implied by custom, law or statute not set out in this Agreement. Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement. To the fullest extent permitted by law, Redcat’s liability for a breach of a non-excludable guarantee referred to in this clause 8.4 is limited, at Redcat’s option, to the supplyng of the Services again or payment of the cost of having the Services supplied again.

 

9.5  Nothing in this Section 9 limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.

 

10. TERM AND TERMINATION

10.1  This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration of the Term for all subscriptions, in each case as specified in Order Forms under this MSSA or (b) the termination of the Agreement in accordance with this Section. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Services. For avoidance of doubt, upon termination of any Order Form, the Services provided pursuant to such Order Form will cease and Customer will stop using such Services.

 

10.2  Automatic Renewal. Subscriptions for the Cloud Services commence on the Effective Date specified in the applicable Order Form and continue for the Term specified in the Order Form, unless otherwise terminated earlier in accordance with the provisions of the Order Form or this MSSA. Except as otherwise specified in this MSSA or in the applicable Order Form, all subscriptions will automatically renew for additional periods of equal to the expiring subscription term or one year (whichever is shorter) (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term (as the case may be).

 

10.3 Suspension: Redcat may suspend the Customer’s or any any of its Users’ access to, or use of, the Services if Redcat believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) the Customer or its Users are accessing or using the Services to commit an illegal act or otherwise in violation of this Agreement. Redcat will use reasonable efforts to re- establish the Services promptly after the issue causing the suspension has been resolved. During any suspension period, Redcat will make Customer Data (as it existed on the suspension date) available to the Customer. Any suspension under this Agreement will not excuse the Customer’s obligation to make payments under this Agreement.

 

10.4  Termination for Cause. A Party may immediately terminate the Agreement or any applicable Order Form for cause: (a) upon 15 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period, (b) for material violations of confidentiality obligations, or (c) 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.

 

10.5  Survival. Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.

 

10.6  Refund or Payment upon Termination. Upon any termination for cause by Customer, Redcat will refund Customer a pro-rata portion of any prepaid any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination. Upon any termination for cause by Redcat, Customer will pay any unpaid Fees covering up to 3 months of any remaining Term of all subscriptions under the applicable Order Forms after the effective date of termination and for any Professional Services provided up to the date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Redcat for the period prior to the effective date of termination.

10.7  Downloading of Customer Data. During any Term under an Order Form, on a rolling 24-month basis (unless otherwise provided in any Order Form) and for the period 90 days after termination or expiration of the Agreement or the applicable Order Form, Customer may download Customer Data used in connection with such Order Form, in comma separated value (.csv) format, using the tools of the SaaS Platform. After expiration of the applicable rolling 24 month or 90-day period, Redcat will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in Redcat systems or otherwise in Redcat possession or under Redcat control.

 

11. PROFESSIONAL SERVICES

11.1  Availability of Customer Resources. Customer will make available to Redcat certain of Customer personnel, business information and other relevant information as reasonably required by Redcat in the performance of any Professional Services hereunder or as specified in any applicable Order Form. Customer will ensure that competent personnel are available during normal working hours to provide information and other support to Redcat while providing Professional Services. Customer acknowledges that the timeliness or provision of Professional Services may be dependent on such Customer’s personnel availability and cooperation.

 

11.2  Compliance with Customer or Redcat Rules. If applicable, while on the premises of the other Party for training or other services, each Party will take reasonable measures to have its personnel comply with the other Party’s reasonable rules and policies regarding safety, security, and conduct made known to such Party, and will at Customer’s request promptly remove from the project any of its personnel not following such rules and regulations.

 

12. DISPUTE RESOLUTION, GOVERNING LAW & NOTICES

12.1 Dispute Resolution, Governing Law. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to this Agreement will be brought in the courts of Victoria, Australia and the Parties agree to submit to the non-exclusive jurisdiction of such courts.

 

12.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) delivery by traceable courier, (b) upon delivery via mailing (confirmed receipt signature/return receipt requested), or (c) the second business day after sending by confirmed facsimile. Notices to Redcat will be addressed to the CFO with a copy to the CEO at [1/51 Stephenson St, Cremorne VIC 3121] or in the case of Customer, sent to the address and contact set out on the Order Form, or as designated from time to time in writing by the Parties. Billing-related notices will be addressed to the relevant billing contact designated by Customer on the Order Form.

 

13. GENERAL PROVISIONS

13.1 No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any Order Form and no statement or other information made or provided orally or otherwise will be binding unless specifically set out in an Order Form.

 

13.2  Export Compliance. Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports or otherwise restricted from doing business with any U.S. company, and Customer will not access or use the Services in violation of any U.S. or international export embargo, prohibition or restriction.

 

13.3  Force Majeure. Neither Party will be in default for failing to perform any obligation hereunder (except the obligation to pay the Fees), if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, communications networks, power outages, labor disputes or governmental demands or restrictions.

 

13.4  Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

 

13.5  No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.

 

13.6  Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

 

13.7  Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

 

13.8  Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

 

13.9  General. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement or any Order Form will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic transmission), will be deemed an original, and both of which will constitute one and the same agreement.

 

14. ADDENDUMS

14.1 Data Processing Agreement. Applies to European Union Customers or Australian Customers contracting with Redcat UK.  https://www.redcatht.com/en-gb/about-us/dpa

 

The Parties agree to the terms and conditions of this Agreement by their signature on the Order Form.