Customer Terms of Service

Effective: 16 April 2017, Updated: 10 June 2021

Nectir Pty Ltd, ABN: 55 613 309 327

1. What’s the deal?

These Customer Terms of Service (the “Customer Terms”) identify your rights and responsibilities when using our innovation management platform (the “Services”). Please read them carefully – we know it’s long but it protects you, and us. If you are a Customer (we’ll describe that soon), these Customer Terms establish your access and use of our Services. If you are joining another team or company that you have been invited to, please read the User Terms (if you like reading, read these as well).

2. The who’s who.

These “Customer Terms” form a part of a binding “Contract”

These Customer Terms (or, if we’ve developed a written agreement with you as a supplement) and any Order Form(s) (defined below) together form a binding “Contract” between Customer and us.

Your Agreement On Behalf of “Customer”

If you purchase subscription(s), create a team or company (i.e. a unique account where a group of users may access the Services), invite users to that account, or use or allow use of that account after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.

3. Customer Choices and Instructions.

Who is “Customer”? (See it’s singular, numero uno).

“Customer” is the organisation or business or entity that you are authorised to represent in agreeing to the Contract. If your account is being set up by someone who is not formally affiliated with an organisation, Customer is the individual creating the account. For example, if you signed up using a personal email address and invited a couple of friends to work on a cool new startup idea but haven’t formed a company yet, you are the Customer.

Signing Up Using a Corporate Email Domain

If you signed up for a plan using your corporate email domain, your organisation is Customer, and Customer can modify and re-assign roles on your team (including your role) and otherwise exercise its rights under the Contract. If Customer elects to replace you as the representative with ultimate authority for the team, you agree to take any actions reasonably requested by the Customer and/or us to change access rights accordingly.

What This Means for Customer—and for Us

Individuals authorised by Customer to access the Services (an “Authorised User”) may submit content or information to the Services, such as ideas, messages or files (“Customer Data”), and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, assign permission to manage permissions, transfer or assign teams, share information, or consolidate teams or reporting lines with other teams or reporting lines. Since these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data, please refer to our Console section in setting to view the access abilities that an administrator can have.

Customer will (a) inform Authorised Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) obtain all rights, permissions or consents from Authorised Users and other Customer personnel that are necessary to grant the rights and licenses in the Contract and for the lawful use and transmission of Customer Data and the operation of the Services.

Ordering subscription licenses

A subscription allows an Authorised User to access the Services. No matter the role, a subscription license is required for each Authorised User. A subscription license may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an “Order Form”). Please see the Support section for more information on purchasing subscription licenses and inviting new Authorised Users. Each Authorised User must agree to the User Terms of Use to activate their subscription license. Subscription licenses commence when we make them available to Customer and continue for the term specified in the Services “billing” interface or in the Order Form, as applicable. Each subscription license is for a single Authorised User for a specified term and is personal to that Authorised User. We sometimes enter into other kinds of ordering arrangements, but that would need to be spelled out and agreed to in an Order Form. During an active subscription term, adding more subscriptions is fairly easy. Unless the Order Form says otherwise, Customer may purchase more subscription licenses at the same price stated in the Order Form and all will terminate on the same date. Check out our Support pages for additional information on setting up a team and assigning roles.

Buy what you see

We may share information about our future product plans because we like to be open with you. Our public statements about those product plans are an expression of intent, but do not rely on them when making a purchase. If Customer decides to buy our Services, that decision should be based on the functionality or features we have made available today and not on the delivery of any future functionality or features.

Pre-release testers

Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products may not be ready for wide release so they are made available “as is,” and any warranties or contractual commitments we make for other Services do not apply. Should Customer encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.

We listen to you

The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a good chance we will use it, so Customer grants us (for itself and all of its Authorised Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorised User or other Customer personnel. If we choose not to implement the suggestion, please don’t take it personally. We appreciate it nonetheless.

Non-Nectir Products and Services

If a Non-Nectir Product is enabled for Customer’s team, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Nectir Product.

Privacy Policy

Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our websites and products.

4. Customer and Authorised Users

Use of the Services

Customer must comply with the Contract and ensure that its Authorised Users comply with the Contract and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any Customer Data or the way Customer or its Authorised Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorised Users are over 18 years old. Customer is solely responsible for providing high speed internet service for itself and its Authorised Users to access and use the Services.

Our Removal Rights

If we believe that there is a violation of the Contract that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Non-Nectir Product, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorised Users, or any third parties.

5. Payment Obligations

Payment Terms

For Customers that purchase our Services, fees are specified at the Services interface “billing” and/or in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. If we agree to invoice Customer by email, full payment must be received within five (5) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.

Billing:

1. Each account is billed on a monthly basis unless an order form agrees otherwise.
2. The billing period is based on the day Customer upgrades to a paid plan. So for example if Customer upgrades on 15 Nov – the billing period will be 15th to 15th. The same applies to an annual billing.
3. If Customer upgrades on the 31st or 28th (Feb) the default will be 30.

Prorata

If new users are added (sign-up) partway through the billing cycle, we’ll only charge for the cost of the time used – prorata.

For example:

Standard plan paying monthly, which costs $10 per member per month. New users are added 10 days into the billing period, leaving 20 days remaining in the month.

The prorated subscription cost is calculated by dividing the cost per member ($10) by the number of days in the month (30) and multiplying it by the number of days remaining (20), which gives us the prorated subscription cost for the remainder of that billing period: $6.66

The total prorata amount will be billed with the next billing cycle as a balance brought forward.

If the account is a quarterly or annual plan, it works the same way. We calculate the prorated cost for the rest of the quarter or year, and bill the account at the end of the month for any new additions. I.e they will be billed monthly for new users for the rest of the period.

Dispatch and Delivery

By creating a Nectir account you will receive a verification email with a verification code and a link to return to complete the verification. After entering the correct code you will be granted access to the system. If you have signed up to a free plan, and have chosen to upgrade to a paid plan, you will use the same login details to access Nectir.

Refund Credits

Any credits that may accrue to Customer’s account (for example, from a promotion ), will expire following expiration or termination of the applicable Contract, will have no currency or exchange value, and will not be transferable or refundable.

Suspension of service

If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, suspend access to any fee-based Services until those amounts are paid in full, so long as we have given Customer ten (10) or more days’ prior notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, Customer acknowledges and agrees that a suspension of service will result in a decrease in certain features and functionality and potential loss of access to Customer Data.

6. Service Level Agreement

Providing the Services

We have responsibilities too. We will (a) make the Services available to Customer and its Authorised Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorised Users and any processing related to such use or otherwise necessary for the performance of the Contract.

Be assured that (a) the Services will perform materially in accordance with our then-current Support pages; and (b) subject to the “ Non-Nectir Products” and “Suspension of service” sections , we will not materially decrease the functionality of a Service during a subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination”.

Keeping the Services Available

We also offer specific uptime commitments pairing paid subscriptions with credits, if we fall short. This will be Customer’s sole remedy for the downtime and related inconvenience. For all Service plans, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide Customer with advance notice (e.g., through the Services), if we think it may exceed six (6) continuous minutes.

Downtime: The total accumulated minutes, during which the Service is unavailable unavailable due to Nectir error or Nectir server issues. Not to include downtime caused by end users network, end users computer, or third party equipment.

Here are an example of scenarios that will not be counted towards downtime:

• Slowness with specific features (such as the loading of idea feeds, search, etc.)
• Issues relating to third party apps or integrations of third party apps on your Nectir account.
• Delays with image or document uploading, processing, or sharing.
• Network problems external to our systems which are beyond our control, such as bad routing tables between your ISP and our servers.
• “Scheduled downtime” to complete maintenance.

Uptime

“Monthly Uptime” is the percentage of total possible minutes Nectir was available to you. To calculate this, we subtract the number of downtime minutes from the total possible minutes in a given month. Our Service Level Agreement (SLA) for customers on the Standard or Enterprise plan is guaranteed at a 99.99% monthly uptime

Scheduled downtime

Occasionally, we need to perform maintenance to keep Nectir working as smoothly as possible. If scheduled downtime is necessary, we’ll give you 48 hours advance notice. In a calendar year, there will not be more than 20 hours of scheduled downtime. We will endeavour to perform maintenance on weekends.

Service credit

If we miss our uptime commitment, we’ll refund you 10 times the amount your team paid during the period Nectir was down, in the form of “Service Credit.” Service credit can’t be exchanged for cash. We’ll draw from your credit balance before charging you, when you add new team members or reach your renewal date.

Please note, service credits are capped at a maximum of 5 days worth of paid service for your team and will expire following the termination of your paid services plan with Nectir.

Exclusions

Our SLA excludes the following issues:

• Any performance issues by factors outside of our reasonable control
• That resulted from any actions or inactions from Customer
• That result from Customer or third party equipment
• If your right to use Nectir is terminated in accordance with the Nectir Customer Terms of Service.

Support

Nectir offers three levels of support.

1. Self help

• Knowledge centre articles, guides and video instruction for user support.
• Available online 24/7 to all users
• Accessed through: https://help.nectir.co/

2. Online support

• Online messaging support to administrators
• Available between during 8am and 6pm (Australian Western Standard Time) (+8 UTC)
• Accessed through: https://nectir.co
• With maximum 6 hour response time during operating hours, or within 24 hours out of operating hours

3. Assisted Support

• Direct email support to administrators
• Available 24/7 with a maximum of 24 hours response time.
• Assisted support is overseen my management and requires no escalation.

Protecting Customer Data

The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards. Those safeguards will include measures for preventing unauthorised access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unAuthorised access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data. We are not responsible for what Customer’s Authorised Users or Non-Nectir Products do with Customer Data. That is Customer’s responsibility.

Disaster Recovery

Customer Data is stored in multiple, geo-replicated locations in our hosting provider’s data centers to ensure availability and recoverability. Transaction data is backed throughout the day with a maximum recovery point objective at less than an 1 hour. Nectir’s estimated recovery time after a disruptive event is less than 48 hours.

Nectir’s operations team is notified in the event of failure in system. Nectir will will contact you with estimated restoration times in the event if a system failure.

7. Ownership and Proprietary Rights

What you’ve created is yours

As between us, and Customer and any Authorised Users, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorised Users) grants us, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-Nectir Products created by or for Customer, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Data Request Policy; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorised Users as may be necessary to grant this license.

What we’ve created is ours

We own and will continue to own our Services, including all related intellectual property rights.

8. Acceptable Use of Nectir

We take fair, responsible usage seriously and have developed a code of use for acceptable and unacceptable conduct for our Service. If we believe that at any point there is a violation of this code we may suspend or termiante your access.

You must:

• keep passwords and account information confidential and responsibly protected,
• comply with your employer’s confidentiality, and IP agreements with you,
• comply with all applicable laws and government regulations, including, but not limited to, all intellectual property, data, privacy, and export control laws, and regulations promulgated by any government agencies,
• upload and disseminate only Customer Data to which Customer owns all required rights under law and under contractual and fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) and do so only consistent with applicable law;
• use commercially reasonable efforts to prevent unauthorised access to or use of the Services;
• monitor and control all activity conducted through your account in connection with the Services;
• promptly notify us if you become aware of or reasonably suspect any illegal or unauthorized activity or a security breach involving your accounts or teams, including any loss, theft, or unauthorised disclosure or use of a username, password, or account; and
• comply in all respects with all applicable terms of the third party applications, including any that Customer elects to integrate with the Services that you access or subscribe to in connection with the Services.

You must not:

• permit any third party that is not an Authorised User to access or use a username or password for the Services;
• share, transfer or otherwise provide access to an account designated for you to another person;
• if you have been provided administrative rights that gives you access to assigning access rights to others, will not provide access to individuals outside of Customer’s direct fiduciary authority without Customer’s consent. For example you must not provide access to Customer’s account to individuals who are not employed by Customer without Customer’s consent.
• use the Services to store or transmit any Customer Data that may infringe upon or misappropriate someone else’s trademark, copyright, or other intellectual property, or that may be unlawful;
• upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component or a technology that unlawfully accesses or downloads content or information stored within the Services or on the hardware of Nectir or any third party;
• attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services (including any mechanism used to restrict or control the functionality of the Services), any third party use of the Services, or any third party data contained therein (except to the extent such restrictions are prohibited by applicable law);
• attempt to gain unauthorised access to the Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services;
• access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services;
• use the Services in any manner that may harm minors or that interacts with or targets people under the age of thirteen;
• impersonate any person or entity, including, but not limited to, an employee of ours, an “Administrator”, an “Owner”, or any other Authorised User, or falsely state or otherwise misrepresent your affiliation with a person, organization or entity;
• access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, “scraping” or creating accounts in bulk);
• send unsolicited communications, promotions or advertisements, or spam;
• place any advertisements within a Nectir client;
• send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
• abuse referrals or promotions to get more credits than deserved;
• use contact or other user information obtained from the Services (including email addresses) to contact Authorised Users outside of the Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for Authorised Users for use outside of the Services; or
• authorise, permit, enable, induce or encourage any third party to do any of the above.

9. Duration

Contract Term

As further described below, a free subscription continues for a period of 30 days, after which the account may be suspended, while a paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

Auto-Renewal

Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Services-interface “billing” or execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-user pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.

Termination for Cause

We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorised Users, including for any breaches of this Contract caused by its Authorised Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorised Users in violation of applicable law.

Termination Without Cause

Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause, but we will provide Customer with ten (10) days prior written notice.

Effect of Termination

Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

Data Portability and Deletion

We are custodians of Customer Data. During the term of a team’s subscriptions, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a team’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, delete all Customer Data in our systems or otherwise in our possession or under our control.

10. Representations; Disclaimer of Warranties

Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorised Users and their compliance with the terms of this Contract and the User Terms. Except as expressly provided for herein, the services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that we do not warrant that the services will be uninterrupted, timely, secure, or error-free.

11. Limitation of Liability

Other than in connection with a party’s indemnification obligations hereunder, in no event will either Customer’s or Nectir or it’s third party providers aggregate liability arising out of or related to the contract or the user terms (whether in contract or tort or under any other theory of liability) exceed the total amount paid by customer hereunder in the twelve (12) months preceding the last event giving rise to liability. The foregoing will not limit customer’s payment obligations under the “payment terms” section above.

In no event will either customer or any member of the Nectir’s third party providers have any liability to the other party or to any third party for any lost intellectual property, profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.

Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorised Users. We will not be responsible for any damages, losses or liability to Customer, Authorised Users, or anyone else, if such information is not kept confidential by Customer or its Authorised Users, or if such information is correctly provided by an unauthorised third party logging into and accessing the Services.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.

12. Our Indemnification of Customer

We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data or Non-Nectir Products; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us and Nectir for any Claim Against Customer.

13. Customer’s Indemnification of Us

Customer will defend Nectir and Nectir’s third party providers (collectively, the “Nectir Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorise Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the Nectir Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Nectir Indemnified Party in connection with or as a result of, and for amounts paid by a Nectir Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the Nectir Indemnified Parties’ exclusive remedy against Customer for, any Claim Against Us.

14. Limitations On Indemnifications

Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

15. Confidentiality

Confidential Information

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

Protection and Use of Confidential Information

The Receiving Party will (a) take at least reasonable measures to prevent the unAuthorised disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract ; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.

Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Data Request Policy for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

Survival

The sections herein will survive any termination or expiration of the Contract.

16. General Provisions

Publicity

Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. We don’t want to list customers who don’t want to be listed, so Customer may send us an email to support@nectir.co stating that it does not wish to be used as a reference.

Force Majeure

Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

Relationship of the Parties; No Third Party Beneficiaries

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.

Email and Nectir Messages

Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Customer through the Services (e.g., a Nectirbot notification). Notices to Nectir will be sent to support@nectir.com, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to legal@nectir.co. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

Modifications

As our business evolves, we may change these Customer Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorised User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an Authorised representative of the party being deemed to have granted the waiver.

Severability

The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract 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 the Contract will remain in effect.

Assignment

Except with respect to Nectir , neither party may not assign or delegate 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). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying Nectir of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Governing Law

The Contract, and any disputes arising out of or related hereto, will be governed by the laws of the Western Australia and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia.

Entire Agreement

The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorised Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) the portions of the Customer-Specific Supplement that apply to Customer (if any), (3) the Customer Terms and (4) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.

Contacting Nectir

Please also feel free to contact us if you have any questions about Nectir’s Customer Terms of Service. You may contact us at support@nectir.co or at our mailing address below:

Nectir Pty Ltd, ABN: 55 613 309 327 \ Email: support@nectir.co

Last update: 10 June 2021