SOFTWARE AS A SERVICE AGREEMENT
Introduction
Thank you for using the OctopusBI Product.
This Agreement (as defined herein) describes the rights, responsibilities, and obligations for us and you.
This Agreement is between us (as defined below) and you, as referenced in the applicable and Order Form (as defined herein) and is effective upon commencement of the subscription period as specified in the Order Form.
You acknowledge that you have read and understood this Agreement and Data Processing Addendum annexed hereto and agree to be bound by all of their terms.
1.0 Definitions and Interpretation
1.1 In this Agreement unless the context otherwise requires:
Affiliate means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
Agreement means this Agreement, including without limitation the Order Form, which defines the terms and conditions of the license of the OctopusBI Product.
Authorized User means an individual who you permit to access and use the OctopusBI Product in accordance with the terms of this Agreement, such as individuals invited by you and individuals under managed accounts.
Claims means claims, demands, suits, actions, damages, liabilities, losses, penalties, costs and expenses, proceedings, including any attorney and court fees/expenses.
Confidential Information means any information of a confidential nature (whether provided verbally or by way of a document or other material in human or machine-readable form) which relates to OctopusBI or you and includes:
i. any information regarding the pricing or discounts offered to you by us.
ii. information regarding details of any Intellectual Property, including trademarks, patents, copyrighted materials, trade secrets, designs, drawings, know-how, plans, models, or computer software owned by or licensed to us;
iii. information which is marked as confidential by a party; or
iv. information which the recipient knows, or ought to know, is confidential but does not include information that is, or after the date of this Agreement becomes, freely available to the public (otherwise than as a result of a breach of this Agreement).
v. specifically, our Confidential Information includes any performance information relating to the OctopusBI Product and OctopusBI Software will be deemed our Confidential Information without any marking or further designation, the design, specification and content of the OctopusBI Product, including any source codes, our personnel information, operational and other policies, project documentation, proposals, or other development documentation, including any specification, or business strategies, and the terms of this Agreement, including the fees and information relating to our pricing.
Corporations Act means the Corporations Act 2001 (Cth)
Data Protection Laws means the GPRD, laws, regulations, and binding administrative rules worldwide regarding the protection of data and privacy of individuals, but not including any industry-specific or sector-specific laws, regulations, rules, or industry-standards, such as those related to healthcare, financial services, payment card, or government and public bodies
Data Breach means (a) any unauthorized access to, or unauthorized disclosure of, any OctopusBI Personal Information held by you; or (b) any OctopusBI Personal Information held by you is lost in circumstances where unauthorized access to, or unauthorized disclosure of, OctopusBI Personal Information is likely to occur.
Data Processing Addendum means the Data Processing Addendum as attached hereto as Annexure1 (including its annexures and appendices).
Eligible Data Breach has the meaning given by Division 2 of Part IIIC of the Privacy Act.
Fees means the fees and charges set out in the Order Form or as amended in accordance with this Agreement from time to time.
GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and implementing legislation of European Union / EEA member states made pursuant thereto, as well as in respect of the United Kingdom the Data Protection Act 2018 and the GDPR as saved into United Kingdom law by virtue of Section 3 of the United Kingdom's European Union (Withdrawal) Act 2018.
Initial Term means the date of the subscription period as determined the in the Order Form, or if no date is specified the first anniversary of the date of the Order Form.
Intellectual Property Right means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Law means all applicable laws, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
OctopusBI means Ayra Group Pty Ltd (Australian Company Number 611 902 106).
OctopusBI Personal Information includes any Personal Information of OctopusBI, OctopusBI’s Personnel, customers, prospective customers and end users of the products and services supplied under this Agreement.
OctopusBI Product means the particular hosted services and cloud-based solutions, which use the OctopusBI Software, and update and change from time to time, and offered by us through the Order Form.
OctopusBI Software means the platform owned and operated by OctopusBI which assists users to analyse and predict educational outcomes or any other platform operated by OctopusBI from time to time.
Order Form means the online or paper-based order form, or quote, or proposal under which you can place, or accept, an order for the use of the OctopusBI Software, as executed by you and accepted by us in writing.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not, including personal information of a natural person under any Data Protection Law.
Personnel means any personnel, employee, agent, contractor, subcontractor, director, officer, secondee or representative of a party.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Legislation means the Privacy Act, the Spam Act 2003 (Cth), any registered APP Code that binds a party and any other laws, industry codes and policies relating to the handling of Personal Information.
Privacy Policy means the privacy policy of OctopusBI as amended or replaced from time to time, which is currently published at https://octopusbi.com/privacy-policy/
Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act.
Tax means any federal, state or local sales, use, value added, goods and services, or other similar transaction taxes, as well as withholding tax.
Term means the Initial Term and any renewal of such term pursuant to clause 3.2.
Termination Date means the date that this Agreement is terminated.
You means the entity you represent in accepting this Agreement or, if that does not apply, you individually.
Your Data means:
(a) any data, content, code, video, images, and Personal Information, or other materials of any type submitted, uploaded, transmitted or otherwise made available to or through the OctopusBI Software by you or any person authorised by you; or
(b) any results of data analysis and any other reports and outputs generated by the OctopusBI Software.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, as novated, amended, supplemented, varied or replaced from time to time;
(b) words denoting any gender include all genders;
(c) “includes”, “including” and similar expressions are not words of limitation;
(d) where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
(e) a reference to this Agreement, a document or another instrument includes any variation or replacement of either of them;
(f) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(g) the singular includes the plural and vice versa;
(h) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(i) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;
(j) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive to that day; and
(k) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
2.0 Acceptance
This Agreement and the annexed Data Processing Addendum becomes binding when you sign an Order Form upon our written acceptance of such Order Form (or by checking a checkbox indicating acceptance in case of an online Order Form and upon our written acceptance of such Order Form).
3.0 Grant of License and Term
3.1 In consideration of the payment of Fees by you, and subject to the terms of this Agreement, OctopusBI grants to you (and any of your Authorized Users) a non-exclusive, revocable, non-transferable license to use the OctopusBI Product during the Term, unless otherwise determined in the Order Form .
3.2 This Agreement is for the subscription period as referenced in the Order Form, and will automatically renew at the end of each Term for another year, unless either party gives written notice to the other party of its intention to terminate this Agreement at least two months prior to the end of the then current Term, subject to termination otherwise pursuant to clause 25.
4.0 Access to the OctopusBI Product
4.1 You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the OctopusBI Software or otherwise use the OctopusBI Software, including, without limitation, modems, hardware, software, internet service and telecommunications capacity.
4.2 You are responsible for ensuring that such equipment and ancillary services are compatible with the OctopusBI Software.
5.0 Use of the OctopusBI Product
5.1 No Order Form is or can become contingent on the delivery of any future functionality or feature or dependent on any oral or written public comments made by us regarding future functionality or feature.
5.2 You acknowledge that the OctopusBI Product referenced in an Order Form is being purchased separately from any of our other OctopusBI Products.
5.3 Certain OctopusBI Products may be subject to additional limitations, restrictions, terms and/or conditions specific to such OctopusBI Products (Specific Terms). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant OctopusBI Product will be contingent upon your acceptance of and compliance with such Specific Terms.
6.0 Trial user
6.1 If this Agreement is for a trial or evaluation, the licenses granted herein will terminate upon the expiration or cancellation of the trial or evaluation period. You may use the OctopusBI Product only for the duration of the trial or evaluation period.
6.2 At the end of this period, you have the option of subscribing for the use of the OctopusBI Product for a Fee. If you do not subscribe, your access to the OctopusBI Product will be restricted or terminated by OctopusBI at any time without further notice.
6.3 If you choose not to subscribe to the OctopusBI Product following your trial, we will delete Your Data after your trial ends.