6clicks General Terms
1. Agreement between 6clicks and Users
1.1 Structure of the Agreement
(a) These General Terms set out the detailed terms applicable between 6clicks Trading Pty Ltd ACN 634 263 166 (6clicks) and a Customer, a Service Provider, or an Assessment Counterparty (collectively referred to as Users).
(b) The agreement between the parties includes:
(i) these General Terms;
(ii) any document incorporated by reference in these General Terms and the Customer Terms, the Service Provider Terms (Reseller Arrangement), or the Service Provider Terms (Referral Arrangement) (as applicable); and
(iii) the Customer Terms, the Service Provider Terms (Reseller Arrangement), or the Service Provider Terms (Referral Arrangement) (as applicable),
(collectively referred to as the Agreement) and in the event of any inconsistency between these documents, the document appearing lower in the list set out above will prevail to the extent of the inconsistency.
1.2 Updates to these terms
6clicks may change these General Terms, the Customer Terms, the Service Provider Terms (Reseller Arrangement), or the Service Provider Terms (Referral Arrangement) at any time by notice to the User. If the User:
(a) does not accept the changes, it may terminate the Agreement in accordance with clause 13.3(a); or
(b) does not terminate the Agreement in accordance with clause 13.3(a), the Agreement will continue in effect and the changes will apply to the Agreement with effect 30 days from 6clicks’s notice of the changes.
2.1 Grant and Term of Licence
(a) Subject to the User complying with this Agreement, 6clicks grants to the User, and the User accepts, a non-transferable, non-exclusive, revocable licence to:
(i) if the User is a Customer or Service Provider, access and use the Platform for the purposes set out in this Agreement on a monthly rolling basis unless this Agreement is terminated in accordance with clause 13; or
(ii) if the User is an Assessment Counterparty, access and use the Platform for the purpose of completing and submitting Assessments to a Customer only.
(b) The User must not access or use the Platform for any purpose other than its internal business use except to the extent the Platform is designed to allow the User to use the Platform to engage with third parties (for example, in order for a Customer to obtain Products from a Service Provider).
2.2 Authorised Users
The User may authorise its Authorised Users to access and use the Platform. The User acknowledges and agrees that it:
(a) is responsible for the access to and use of the Platform by its Authorised Users, including their compliance with this Agreement; and
(b) will be liable for all acts and omissions of its Authorised Users as if they were the User’s own acts and omissions.
3.1 Subscription Scope
(a) 6clicks will provide the Platform in accordance with the Subscription Scope as selected by the User, on the terms and conditions set out in this Agreement.
(b) The Subscription Scope and their respective features and functionality are further described at https://6clicks.io/pricing or as set out in the Schedule.
(c) The parties may at any time agree to vary the User‘s selected Subscription Level, including any related variation to the Fee.
(a) Although 6clicks will use commercially reasonable efforts to ensure the Platform is available 24 hours a day, 7 days per week, the Platform may become unavailable from time to time for scheduled Updates or as a result of events beyond 6clicks’s reasonable control including:
(i) failure or default by any of 6clicks‘s third party service providers;
(ii) abnormal usage volumes; or
(iii) any breach of this Agreement by the User or the negligence of the User or its Personnel.
(b) In the case of downtime for reasons outside of 6clicks‘s reasonable control, 6clicks will use commercially reasonable efforts to overcome such circumstances or mitigate their effects and resume full operation as soon as reasonably practical.
3.3 Content and Analytics
Although 6clicks will use commercially reasonable endeavours to ensure that any Content and Analytics available to the User through the Platform are kept current and up-to-date, there may be circumstances outside of 6clicks’s reasonable control that may delay Updates to the Content and Analytics from time to time. Users acknowledge and agree that Content and Analytics may be out-of-date, inaccurate, or incomplete at any time.
3.4 Updates to the Platform
(a) 6clicks may in its sole discretion release Updates to the Platform from time to time. The User acknowledges and agrees that the Platform may be unavailable for the purpose of 6clicks incorporating the Updates to the Platform.
(b) 6clicks will use commercially reasonable endeavours to ensure that any Updates to the Platform will not materially adversely impact the User‘s use of the Platform.
(c) In the event that the User does not agree to an Update, it may terminate this Agreement in accordance with clause 13.3(a).
In the event that the User or any of its Authorised Users provides 6clicks with any Feedback regarding the Platform, the User grants (and must ensure any of its relevant Authorised Users grant) to 6clicks a worldwide, irrevocable, perpetual, sub-licensable, transferable, royalty-free licence to use any such Feedback for any purpose and without any obligation or compensation to the User or any of its Authorised Users.
3.6 Marketplace Transactions
6clicks is not party to, and has no obligations under, any Marketplace Transaction, and the User releases 6clicks and its Personnel from any Claim arising out of or in connection with any Transaction (except to the extent the Claim arises due to a breach of this Agreement by 6clicks or the fraud, gross negligence or wilful misconduct of 6clicks), including any Claim regarding the quality or fitness for purpose of the Products the subject of the Marketplace Transaction.
4. User Obligations
4.1 General Obligations
The User will (and must ensure that each of its Authorised Users will):
(a) maintain its Environment in order to obtain full access and use of the Platform;
(b) maintain adequate security of the User‘s Environment to minimise the risk of introducing Harmful Code to the User‘s Environment or the Platform;
(c) hold, and comply with any conditions of, all permits and licences required by any Relevant Laws for Customers and Service Providers (as applicable);
(d) keep and maintain a separate back up copy of all User Data stored or processed by it through the Platform;
(e) cooperate with 6clicks in relation to, and take all reasonable steps to facilitate, the provision of the Platform by 6clicks;
(f) comply with all reasonable directions in relation to the Platform issued by 6clicks from time to time;
(g) notify 6clicks promptly if it becomes aware of, or forms a reasonable belief that there has been an occurrence of, any unauthorised access to or use of the Platform;
(h) perform its obligations owed to any Customer, Service Provider or Assessment Counterparty in accordance with the terms of those obligations, using appropriately qualified Personnel, and with a high degree of care and skill; and
(i) provide to 6clicks any information relating to this Agreement or the Platform as 6clicks may reasonably request from time to time.
4.2 Acceptable Use
The User will (and must ensure that each of its Authorised Users will):
(a) comply with all Relevant Laws and Legal Requirements in relation to its access to and use of the Platform;
(b) take all reasonable precautions to keep access to the Platform (including login information and passwords) secure and protected at all times from misuse or any form of unauthorised access or use;
(i) access and use the Platform in a manner which could interfere with the Platform or the provision of the Platform by 6clicks to other Clients;
(ii) engage in conduct or activities which attempt to manipulate or bypass any limitations on the Platform;
(iii) use the Platform in a manner, nor permit the transmission, inputting or storage of any User Data in a manner, that infringes any third party rights (including Intellectual Property Rights);
(iv) use the Platform to input, store, or transmit any objectionable, defamatory, obscene, harassing, threatening, misleading or unlawful User Data;
(v) do (or omit to do) anything that may jeopardise the security of the Platform or access to the Platform;
(vi) transfer, assign, grant a security interest in, or otherwise deal with its rights in relation to the Platform contrary to the terms under this Agreement;
(vii) resell, sub-license, resupply, provide a bureau service using, communicate or otherwise make the Platform available to a third party (except as may be expressly permitted by this Agreement); and
(viii) copy, reproduce, translate, decompile, reverse-engineer, modify, vary or otherwise deal with the Platform or any computer code underlying the Platform (except as may be expressly permitted by this Agreement).
4.3 User Data
(a) The Platform may allow the User to enter and manage User Data. The User acknowledges and agrees that 6clicks may alter or remove any User Data if 6clicks reasonably considers that it breaches the Relevant Laws or the Legal Requirements, including any third party’s rights.
(b) The User will (and must ensure that each of its Authorised Users will):
(i) ensure that the User Data is accurate, complete, reliable, up to date, and fit for purpose; and
(ii) take reasonable steps to ensure that the User Data and any Products complies with all Relevant Laws and Legal Requirements.
(a) In consideration of 6clicks providing the Platform in accordance with this Agreement, the User will pay the Fee to 6clicks.
(b) 6clicks (acting reasonably) may vary the Fee from time to time by giving the User prior notice. If the User does not agree with the variation to the Fee, the User may terminate this Agreement in accordance with clause 13.3(a).
5.2 Invoicing and payment
6clicks will invoice the User for the Fee monthly in advance. The User authorises 6clicks to use a third party payment processor to process payment of the invoiced Fee prior to the due date of the relevant invoice.
5.3 Additional Fees
There may be additional Fees applicable to the User as set out in the relevant Customer Terms, Service Provider Terms (Reseller Arrangement), or Service Provider Terms (Referral Arrangement)
5.4 Payment processing
Users acknowledge and agree that the Platform uses a third party payment processor (Stripe) to handle payments, including payments for all Marketplace Transactions, and all payments made through the Platform are subject to:
(a) the terms and conditions of the third party payment processor (found through: https://stripe.com/au/ssa); and
(b) any charges that the third party payment processor may apply.
(a) Except where this Agreement specifies otherwise, Fees payable by the User to 6clicks do not include any Taxes. The User must, in addition to the Fees and at the same time, pay to the supplier the amount of Taxes imposed by the relevant Regulatory Body payable in respect of the supply of the Platform or any Marketplace Transactions, unless the User provides 6clicks with a valid Tax exemption certificate authorised by the relevant Regulatory Body. For the avoidance of doubt, the Taxes payable under this clause will be calculated by multiplying the amount payable by the prevailing rate of Taxes imposed by the relevant Regulatory Body.
(b) The User warrants to 6clicks that if it is a Legal Requirement, it is registered with the relevant Regulatory Body in relation to the Taxes applicable to the Fees or any Marketplace Transactions at the time of entering this Agreement and will promptly notify 6clicks if it ceases to be so registered.
6.1 Compliance with Privacy Laws
(a) The parties will, in performing their respective obligations under this Agreement, comply with all applicable Privacy Laws, and neither party will put the other in breach of any such Privacy Laws.
6.2 6clicks‘s Use and Disclosure Obligations
6clicks will (except where otherwise required or authorised by law):
(b) not otherwise access, use, process, modify or disclose the relevant Personal Information except with the User‘s or the relevant individual’s prior written consent,
however, 6clicks is under no obligation to:
(c) withhold any User Data or related data, documentation or records from any Regulatory Body with apparent authority to seek delivery or access to such data; or
(d) refuse to provide any such Regulatory Body with access to User Data or related data, documentation or records
if 6clicks receives a request or demand for such information which on its face appears to be valid and lawful.
6.3 Transfer of User Data Outside of Australia
6clicks stores User Data (including any Personal Information) in servers located in Australia for the purposes of performing its obligations under or in connection with this Agreement. 6clicks may store marketing data and related analytics in servers located overseas, and may access those Analytics from both within and outside Australia from time to time.
6clicks will take commercially reasonable steps to:
(a) protect User Data (including Personal Information) to which 6clicks has access in connection with this Agreement against unauthorised access, use, modification or disclosure;
(b) ensure the security of User Data (including Personal Information) to which 6clicks has access in connection with this Agreement by maintaining security systems and procedures that comply with the Privacy Laws; and
(c) destroy, permanently de-identify, or return (at the User‘s direction) any User Data (including Personal Information) held by 6clicks which is no longer required for the purposes of performing its obligations under this Agreement.
6.5 6clicks is a Processor of User Data
The User acknowledges and agrees that 6clicks is a processor of any Personal Information included in the User Data and the User is the controller of that Personal Information. 6clicks will only process the personal data on documented instructions from the User (including the instructions constituted by this Agreement).
6.6 Deletion of Personal Information
The User must take reasonable steps to promptly delete from the Platform any Personal Information contained in the User Data once it is no longer required for the User’s business purposes.
6.7 Provision of information
6clicks will provide the User with all information reasonably requested in order to demonstrate 6clicks’s compliance with this clause 6, including allowing suitable representatives of the User to audit relevant records of 6clicks, subject to 6clicks and the User first agreeing the terms applicable to the audit (with each party to act in good faith).
The provisions of this clause 6 will survive the termination or expiry of this Agreement.
7. Intellectual Property Rights
(a) As between the parties:
(i) the User acknowledges that 6clicks is the proprietor or licensee of all Intellectual Property Rights in the Platform, any Updates, Content, and Analytics provided under or in connection with this Agreement, including any improvements, developments or inventions (whether or not such improvements, developments or inventions require or rely upon any User Data) and that these Intellectual Property Rights are supplied to the User in accordance with the licence under clause 2.1 and solely for the purpose of 6clicks meeting its obligations under this Agreement; and
(ii) 6clicks acknowledges that the User is the proprietor or licensee of all Intellectual Property Rights in the User Data provided under or in connection with this Agreement and that these Intellectual Property Rights are supplied to 6clicks in accordance with the licence under clause 7.2.
(b) Nothing in this Agreement will be construed as granting the parties any ownership rights in respect of the other party’s Intellectual Property Rights.
7.2 Licence to 6clicks and Service Provider
(a) The User grants to 6clicks:
(i) a non-exclusive, royalty-free, worldwide and perpetual licence to use (and allow 6clicks’s Personnel to use) the User Data for the purposes of performing their obligations under this Agreement or any Service Provider agreement, to further develop and make improvements to the Platform and to create, develop, manage, and commercialise the Analytics; and
(ii) a non-exclusive, royalty-free, worldwide and perpetual licence to use the User Trade Marks for the duration of this Agreement for the purposes of advertising and promoting the Platform, Content and Analytics, provided that:
(A) the use is compliant with any guidelines as the User may notify in writing to 6clicks and the Service Provider from time to time;
(B) the User Trade Marks will remain the property of the User; and
(C) the use of the User Trade Marks under this Agreement, and any goodwill arising from that use, will accrue solely for the User’s benefit.
(b) The User grants to the Service Provider:
(i) a non-exclusive, royalty-free, worldwide and perpetual licence to use the User Data for the purposes of performing their obligations under this Agreement or any Service Provider agreement and to create, develop, manage, and commercialise the services of the Service Provider.
The provisions of this clause 7 will survive the termination or expiry of this Agreement.
8.1 Confidential Information
The parties acknowledge that one party may provide the other party with Confidential Information for the purposes of this Agreement. Each party agrees to take reasonable steps to keep the other party’s Confidential Information secure from unauthorised disclosure.
8.2 Use of Confidential Information
A party will not, without the prior written approval of the other party, disclose, copy or use the other party’s Confidential Information, other than to:
(a) the extent required to exercise its rights or perform its obligations under this Agreement;
(b) its Personnel for the purposes of the party exercising its rights or performing its obligations under this Agreement;
(c) comply with any Legal Requirements; or
(d) obtain professional advice in relation to matters arising under or in connection with this Agreement.
8.3 Compliance by Personnel
Each party must procure compliance by each of its Personnel to whom the other party’s Confidential Information is disclosed, with the obligations under this clause 8 as if this clause 8 applied directly to them.
8.4 Return of Confidential Information
Upon termination or expiry of this Agreement, each party must promptly either return or destroy (at that party’s option) the other party’s Confidential Information in its possession or control. Each party must promptly certify in writing to the other party that it has complied with its obligations under this clause 8.4.
The provisions of this clause 8 will survive the termination or expiry of this Agreement.
Each party warrants that:
(a) it has full power and authority to enter into and perform its obligations under this Agreement which, when executed, will constitute binding obligations on that party; and
(b) all information it provides to the other party is true and correct to the best of its knowledge, information and belief.
To the extent permitted by the Relevant Law, 6clicks gives no warranties or representations that:
(a) the operation of the Platform will be uninterrupted, always accessible, or free from Harmful Code;
(b) the Content and Analytics will be up-to-date, accurate, error-free, or complete; and
(c) the Platform will perform to a specific standard or be fit for a particular purpose.
Further, Users acknowledge and agree that 6clicks is not responsible or liable for any Products or any services to the extent not provided by 6clicks or its Personnel.
9.3 No representations
The User acknowledges that it has not relied on any term, condition, representation, warranty, matter, statement or conduct in entering into this Agreement that is not expressly stated in this Agreement. In particular, the Customer has not relied on any descriptions, illustrations or specifications contained in any document (including any catalogues or publicity material produced by 6clicks).
10.1 6clicks’s Indemnity
(a) 6clicks will indemnify, defend, and hold the User and its Personnel harmless from and against any Claim by any third party that the Platform or the permitted use of the Platform infringes or violates any third party’s valid Intellectual Property Rights (IP Claim). If in 6clicks’s reasonable judgment any such IP Claim, or threat of an IP Claim, materially interferes with the User’s access and use of the Platform, 6clicks will consult with the User, and 6clicks will have the option, in its sole discretion, to:
(i) substitute a functionally equivalent non-infringing Platform;
(ii) modify the Platform to make it non-infringing; or
(iii) obtain for the User at 6clicks’s expense the right to continue using the infringing Platform.
(b) If 6clicks cannot achieve any of the remedies in the preceding clause on a reasonable commercial basis, it may, by written notice, require the User to cease using the Platform (or the relevant functionality) and 6clicks will refund a pro-rata portion of the Fee for the Platform for such period of time in which the User was unable to use the Platform (or the relevant functionality).
(c) 6clicks will have no indemnity obligation for any IP Claims resulting or alleged to result from:
(i) any combination, operation, or use of the Platform with any programs or equipment not supplied by 6clicks or not specified in this Agreement for such purpose if in 6clicks’s reasonable judgment such infringement is caused by such use;
(ii) inclusion of User Data; or
(iii) the use of the Platform in a manner other than for their intended purposes or contrary to this Agreement or 6Clicks’s lawful directions.
(d) To the extent permitted at Law, the provisions in this clause 10.1 state the User‘s sole and exclusive remedy in relation to any IP Claim.
10.2 User’s Indemnity
The User agrees to defend, indemnify and hold harmless 6clicks, its Personnel and its Related Bodies Corporate (as defined under the Corporations Act 2001 (Cth)) from and against any and all Claims or Losses arising from:
(a) the User’s use of the Platform (except to the extent any such Claim or Loss arises from a breach of this Agreement by 6clicks or the fraud, gross negligence or wilful misconduct of 6clicks);
(b) the User’s breach of any third party right (including Intellectual Property Rights) or any Relevant Law or Legal Requirements; or
(c) any claim arising in relation to any content of the User Data.
The defence and indemnification obligations provided for in this clause 10 are conditional upon:
(a) the indemnified party providing the indemnifying party timely notice of any claim or cause of action upon which the indemnified party intends to base a claim of indemnification;
(b) the indemnified party providing reasonable assistance and cooperation to enable the indemnifying party to defend the action or claim; and
(c) the indemnified party allowing the indemnifying party to control the defence and all related settlement negotiations; provided that the indemnifying party may not settle any claim that results in the indemnified party’s liability and the indemnifying party will be required to consult in good faith with the indemnified party during any settlement discussions.
The provisions of this clause 10 will survive the termination or expiry of this Agreement.
11. Limit on liability
11.1 Competition and Consumer Act
Nothing in this Agreement restricts, excludes or modifies any consumer rights under any statute including the Competition and Consumer Act 2010 (Cth).
11.2 Exclusion of liability
6clicks will not have any liability to any party (including the User) because of any act or omission of 6clicks or its Personnel, where such act or omission is specifically required by a direction to 6clicks or its Personnel from a Regulatory Body purporting to exercise its functions or powers.
11.3 Consequential Loss
To the full extent permitted by law, neither party is liable to the other party for any Consequential Loss arising out of or in relation to this Agreement.
11.4 Conditions and warranties excluded
Except for conditions and warranties expressly stated in this Agreement and to the extent permitted by law, each party excludes all conditions and warranties arising out of or in connection with this Agreement.
11.5 Limitation of liability
(a) 6clicks’s total aggregate liability in respect of all Claims arising out of or in connection with this Agreement (including in negligence) will not exceed:
(i) the total Fees actually paid by the User to 6clicks under this Agreement in the 12 months preceding the Claim; or
(ii) if there has been less than 12 months since the commencement of this Agreement, the total Fees actually paid by the User to 6clicks up to the date of the event giving rise to the Claim.
(b) 6clicks’s liability arising out of or in connection with this Agreement (including in negligence) will be reduced by the extent, if any, to which the User’s or its Personnel caused or contributed to the relevant Losses.
(c) The User must take reasonable steps to mitigate any Losses it suffers as a result of a breach by 6clicks of this Agreement or the negligence of 6clicks or 6clicks’ Personnel.
(d) To the extent permitted by the Relevant Law, 6clicks’s liability for breach of any condition, warranty or guarantee imposed by statute that cannot be excluded and the User’s sole and exclusive remedy in relation to such breach will be limited to (at 6clicks’s election):
(i) in the case of goods:
(A) replacement or repair of the goods or supplying the equivalent goods again; or
(B) paying the cost of replacing or repairing the goods or of acquiring equivalent goods; and
(ii) in the case of services:
(A) supplying the services again; or
(B) paying the cost of having the services supplied again.
The provisions of this clause 11 will survive the termination or expiry of this Agreement.
(a) Subject to any other requirement for insurance set out in any Reseller Arrangement or Referrer Arrangement, 6clicks will effect and maintain at its own expense the following insurance policies until the termination or expiry of this Agreement:
(i) professional indemnity insurance with a policy value of not less than $10 million; and
(ii) public liability insurance with a policy value of not less than $10 million.
13. Suspension and Termination
Without limiting 6clicks’s rights in respect of any breach of this Agreement, if the User or any of its Personnel breaches any material obligation in this Agreement, 6clicks may suspend the User’s or any of its Authorised User’s access to or use of any or all of the Platform until the breach is remedied to 6clicks’s reasonable satisfaction.
Without limiting the generality of any other clause in this Agreement, a party may terminate this Agreement by written notice to the other party if the other party:
(a) breaches a material term of this Agreement and does not remedy the breach within 14 days of receiving a notice of the breach, or
(b) breaches a material term of this Agreement that is not capable of remedy; or
(c) becomes, threatens or resolves to become or is in jeopardy of becoming subject to any bankruptcy, receivership, external administration or other form of insolvency administration, and fails to make any payment when due under this Agreement;
(d) being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or
(e) ceases or threatens to cease conducting its business in the normal manner.
13.3 Termination for convenience
Either party may terminate this Agreement for convenience by:
(a) in the case of the User, immediately by contacting 6clicks at [email protected]; and
(b) in the case of 6clicks, by giving the User at least 30 days’ prior written notice.
14. Dispute Resolution
14.1 Initial negotiations
A party must use its best efforts and enter into good faith negotiations with the other party to resolve any dispute under or in connection with this Agreement before taking any further action.
If the parties have been unable to resolve the dispute through the negotiations specified in clause 14.1 within 20 Business Days, then the parties’ representatives will meet with a view to resolving the dispute.
If the process in clause 14.2 fails to resolve the dispute to each of the parties’ reasonable satisfaction, the parties will appoint a mutually agreed third party mediator to mediate the dispute, the costs of which will be shared equally between the parties.
(a) If the parties cannot agree on the identity of a mediator within 7 days after either party notifies the other party that the dispute is to be referred for mediation, either party may submit the matter for arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules.
(b) The seat of arbitration shall be Melbourne, Australia.
(c) The language of arbitration shall be English.
14.5 Confidential and Without Prejudice
All negotiations connected with dispute resolution under this clause 14 must be conducted in strict confidence, and are without prejudice to rights of the parties in any further legal proceedings.
Each party must pay its own costs in relation to complying with this clause 14 except for the costs and expenses of mediation or arbitration which will be borne by the parties equally.
14.7 Interlocutory Relief
Nothing in this clause 14 restricts or prevents a party from applying for urgent interlocutory relief.
The parties are independent contractors. Nothing in this Agreement will create the relationship of partnership, joint venturers, principal and agent, trustee and beneficiary or employer and employee between the parties, and it is the express intention of the parties that any such relationships are denied.
16. General provisions
16.1 Force Majeure
(a) Neither party will be responsible for a failure to perform any obligation under this Agreement (except an obligation to pay money) to the extent that it is caused by a Force Majeure Event, provided that such party has:
(i) taken all reasonable steps to prevent and avoid the effects of the Force Majeure Event;
(ii) taken all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable; and
(iii) on becoming aware of the Force Majeure Event, promptly informed the other party of the Force Majeure Event.
(b) In the event that the Force Majeure Event continues for more than 30 days starting on the day the impact of the Force Majeure Event starts, the unaffected party may terminate this Agreement by not less than 10 days’ notice in writing to the affected party.
6clicks may subcontract all or part of its obligations under this Agreement without the prior written consent of, or notice to, the User, including but not limited to the hosting, management, and support of the Platform.
The User must not assign any right or liability under this Agreement without the prior written consent of 6clicks. 6clicks may assign its rights or liabilities under this Agreement, or novate this Agreement, to a Related Body Corporate (as defined under the Corporations Act 2001 (Cth)) that has the resources and expertise to fully perform this Agreement and the User must take all steps, including executing all documents, reasonably requested by 6clicks for this purpose.
(a) Any notice may be served by delivery in person or by post to the address of the recipient specified in the Details Table or most recently notified by the recipient to the sender, or to the email address most recently notified by the recipient to the sender.
(b) Any notice is effective for the purposes of this Agreement upon delivery to the recipient before 4.00pm local time on a day in the place in or to which the notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.
16.5 Governing law and jurisdiction
This Agreement is governed by the laws of Victoria, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts having jurisdiction in that state.
Subject to clause 1.2, any amendment to this Agreement has no force or effect, unless effected by an agreement executed by the parties.
16.7 Third parties
This Agreement confers rights only upon a person expressed to be a party, and not upon any other person.
16.8 Further assurances
Each party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.
16.9 Continuing performance
(a) The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performance of this Agreement
(b) Any indemnity under this Agreement:
(i) constitutes a liability separate and independent from any other liability under this Agreement or any other agreement; and
(ii) survives and continues after performance of this Agreement.
Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by a party does not preclude any other or further exercise of that or any other right by that party.
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
Any term of this Agreement that is expressed to survive, or by its nature survives, the termination or expiry of this Agreement will survive and continue in effect following termination or expiry of this Agreement.
16.14 Party acting as trustee
If a party enters into this Agreement as trustee of a trust, that party and its successors as trustee of the trust will be liable under this Agreement in its own right and as trustee of the trust. Nothing releases the party from any liability in its personal capacity. The party warrants that at the date of this Agreement:
(a) all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the trust is a valid and subsisting trust;
(b) the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
(c) no restriction on the party’s right of indemnity out of or lien over the trust’s assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.
17. Definitions and interpretation
In this Agreement unless the context otherwise requires:
Analytics means any analysis or interpretation of User Data, Personal Information, and other statistics (de-identified and aggregated) undertaken or performed by 6clicks from time to time, and any Intellectual Property Rights created or developed from such activities.
Assessment means a third party risk assessment module created or used by the Customer through the Services.
Assessment Counterparty means a third party authorised by a Customer to access the Platform for the purpose of completing an Assessment.
Authorised User means an authorised end user of a Customer, a Service Provider, or an Assessment Counterparty.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.
Commencement Date means the date on which a User first logs into the Platform;
Confidential Information means, in relation to a party (for the purposes of this definition, the Discloser):
(a) information relating to or used by the Discloser, including know-how, trade secrets, ideas, marketing strategies and operational information;
(b) information concerning any Fees other than such information in the public domain;
(c) information concerning the current or proposed business affairs (including financial information, products, services, customers and suppliers) or property of the Discloser; and
(d) other information which is disclosed, communicated or imparted by or on behalf of the Discloser in circumstances importing an obligation of confidence or which a reasonable person would have realised was of a confidential nature,
and, in respect of 6clicks, includes the source code, object code, and details of the features and functionality of the Platform, and the Analytics, and in respect of the User, includes User Data, but Confidential Information excludes information which is:
(e) User Data and Personal Information that has been de-identified or aggregated by 6clicks;
(f) in or enters the public domain other than through an unauthorised act of the receiving party, which is or becomes publicly known other than by breach of this Agreement or any other obligation of confidentiality; or
(g) developed independently by the receiving party without reliance on any of the Discloser’s Confidential Information.
Content means all data, text, images, audio, video, or other material in any medium delivered to the User by 6clicks through the Services, but excluding any User Data and Products.
Consequential Loss includes special, incidental, punitive, exemplary, indirect or consequential Losses, as well as business interruption losses, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business opportunity, costs of procurement or substitution of goods, technology or services, and loss of information or data (including the costs of recovering or reconstructing any lost or corrupted data).
Customer means a person using the Services for the purpose of automating and managing its Assessments and obtaining Products from Service Providers.
Environment means the User’s existing hosting and processing environment, including all hardware, software, storage space, power, Internet connectivity and other components to be used in conjunction with the Platform.
Fee means any fee or fees as described in the relevant Customer Terms, Service Provider Terms (Reseller Arrangement), or Service Provider Terms (Referral Arrangement).
Feedback means any feedback, suggestions or comments.
Force Majeure Event means an event or circumstance whose occurrence and effects could not have been prevented or overcome, such as earthquakes, natural disasters, fire, flood, riots, civil commotion, industrial disputes, malicious damage, failure of any utility services, viruses, denial of service attacks, other acts or omissions or service outages by third parties (including any Internet service provider) or breakdown of plant or equipment.
Harmful Code means any computer code, software routine, or programming device that is designed to or may:
(a) disable, disrupt, impair, delete, damage, corrupt, reprogram, recode or modify in any way a computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment;
(b) impair in any way the operation of any a computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment based on the elapsing of a period of time, advancement of a particular date or other numeral; or
(c) permit a non-authorised third party to access, transmit or utilise, as appropriate, any a computer processing system, computer network, computer service, a deliverable, interface, data, files, software, storage media, hardware, or equipment; or
(d) any other similar harmful or hidden procedures, routines or mechanisms.
Intellectual Property Rights means all intellectual or industrial property rights, including without limitation any copyright, trade or service mark, patent, moral rights, registered design, trade secret, logo, know how, rights in relation to inventions, rights in respect of Confidential Information and circuit layout rights.
Legal Requirements means any present and future obligation arising under laws, statutes, regulations, by-laws, codes, orders, ordinances, proclamations and decrees (provided such orders, ordinances, proclamations and decrees are legally binding).
Loss means any loss, damage, liability, cost (including all legal and other professional costs), charge, expense, outgoing, fine or payment of any nature or kind.
Marketplace Transaction means an agreement for the purchase and supply of any Products between a Customer and a Service Provider facilitated using the Platform.
Personal Information has the meaning given to that term in the Privacy Laws.
Personnel means the directors, officers, employees, contractors and subcontractors of the relevant party.
Platform means 6clicks’ software and online platform that enables Customers to automate and manage Assessments of their Assessment Counterparties, and enables Service Providers to offer and sell Products to Customers, provided on a ‘software as a service’ basis.
Privacy Laws means the Privacy Act 1988 (Cth) and any other laws or legally-binding codes of practice, guidelines or standards issued by regulators or authorities that apply to the collection, handling, disclosure and use of Personal Information by the parties.
Products means any Service Provider’s goods and services offered to Customers to be used in conjunction with the Platform.
Regulatory Body means any government or any governmental, semi-governmental, or judicial entity or authority, any self-regulatory organisation established or recognised under any statute or any stock exchange.
Relevant Laws means all laws and legally-binding codes of practice, guidelines or standards issued by relevant regulators or authorities or industry bodies including the Privacy Laws and the Competition and Consumer Act 2010 (Cth).
Schedule means a schedule to the Service Provider Terms.
Service Provider means any person using the Services for the purpose of offering and selling Products to Customers.
Subscription Level means the licensing option for the Platform selected by the User in accordance with the Customer Terms or the Service Provider Terms, further described at https://6clicks.io/pricing or as set out in the Schedule.
Taxes means taxes, levies, imposts, charges and duties (including, stamp and transaction duties) imposed by any government entity, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income of 6clicks, including any goods and services tax or value-added tax.
Updates means any upgrades, maintenance, additions or removals of any features and functionality, redesign, improvements, or any other alterations to the Platform.
User Data means any data inputted into the Platform by the Customer, Service Provider, or Assessment Counterparty.
User Trade Mark means the brands, logos, and trade marks used by the User to brand and promote itself and its products and services.
In this Agreement unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this Agreement includes its successors and permitted assigns;
(g) any reference to any agreement or document includes that agreement or document as amended at any time;
(h) the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it;
(i) the expression “at any time” includes reference to past, present and future time and the performance of any action from time to time;
(j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally; and
(k) reference to a statute includes all regulations under and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.