Agreement

This agreement comprises the Statement of Work (SOW) below and the Terms and Conditions attached (together the “Agreement”). The Terms and Conditions will prevail to the extent of any inconsistency between the SOW and the Terms and Conditions, unless the Terms and Conditions expressly provide that a provision of the SOW prevails.

Also refer to our Privacy Policy.

Statement of Work

1. Parties

This Agreement is between:

a. (Customer); and

b. SWOOP Analytics Pty Ltd (ABN 84 601 492 362), having registered offices at Level 17, 175 Pitt Street, Sydney NSW 2000, Australia, c/o Peters Linnette Lawyers (SWOOP),

each a ‘party’ and together the ‘parties’.

2. Commencement date

This Commencement Date is the date at which the Service was initiated.

3. Term

This Agreement commence on the Commencement Date and shall remain in effect during the agreed Term (“Initial Term”). This Agreement will renew (“Renewal Term”), unless either party notifies the other party at least 20 Business Days prior to the expiry of the Initial Term or then current Renewal Term (as applicable) that it does not wish to renew this Agreement. At the start of each Renewal Term, the Licence Fees will be the applicable licence fees in the then current Price List.

4. Software licence

4.1 Licence

SWOOP grants to Customer a non-exclusive, non-transferable, non-sublicensable, worldwide licence for the Term to install and permit the Licensed Users to use the Services in accordance with the terms of this Agreement.

4.2 Restrictions

Customer must:

a. comply with, and ensure Customer’s Representatives comply with, all applicable laws and Swoop’s reasonable directions in relation to use of the Services;

b. unless otherwise permitted by law, not and must not allow any other person to, modify, translate, decompile, disassemble, reverse engineer, copy or otherwise attempt to derive the source code of the Software or create a derivative work of the Software or Documentation;

c. not remove any hyperlinks embedded in the Software or Documentation;

d. report to SWOOP promptly any suspected or unauthorised use of any of the Software or Documentation of which Customer becomes aware; and

e. not allow any more users than the number of Licensed Users to access or use the Software.

4.3 Acknowledgements

Customer acknowledges and agrees that:

a. SWOOP’s provision of the Software and the Services requires Customer to have a Yammer Network or a Workplace Instance, including all necessary licences;

b. the Services do not include the provision of the Yammer Network or the Workplace Instance;

c. SWOOP will not be liable for any failure to provide any part of the Services to the extent it is caused by unavailability of the Yammer Network or the Workplace Instance;

d. the Software may not be error-free;

e. unless otherwise agreed SWOOP will not be mining or performing any analytics on Customer Data that is older than 2 years, and once mined Customer Data is older than 2 years it may be deleted.

f. SWOOP makes no warranty in respect of any Customer Data; and

g. Customer must ensure that the Licensed Users comply with the terms of this Agreement and Customer is liable for any breach of this Agreement by a Licensed User as if it were a breach by Customer.

5. Software description

a. SWOOP provides a software as a service solution delivering social network insights by analysing meta-data derived from interactions, connections and usage patterns on Microsoft Yammer (Yammer) and Workplace by Facebook (Workplace). The Software consists of two components:

(i) SWOOP Data Mining Application.The Data Mining Application is SWOOP software that either:

(A) fully operates on a leased third party instance (Amazon Web Services) controlled by SWOOP;

(B) or fully operates on own or leased third party infrastructure controlled by Customer,

which imports Customer Data from Yammer or Workplace. The SWOOP Data Mining Application makes API calls on an hourly basis to Yammer or Workplace and collects batches of Customer Data. The application makes API calls and receives Customer Data, and stores selected data fields in a text file. These text files are then provided to the SWOOP Social Network Analytics Platform.

(ii) SWOOP Social Network Analytics Platform.

The SWOOP Social Network Analytics Platform is installed on IT infrastructure controlled by SWOOP (the ‘front end’) and delivers an interface from where Licenced Users can access analytics based on Customer Data. These analytics are available from a dedicated website. Five tabs segment the interface:

(A) Enterprise – analytics that include all Customer Data.

(B) Department – analytics that include Customer Data for the Users that belong to the same department.

(C) Group – analytics that include Customer Data published to a specific group.

(D) Topic – analytics that include Customer Data associated with one or multiple hashtags.

(E) Personal – analytics that include all Customer Data that includes a particular User.

b. Imported Customer Data imported may include Personal Information. To the extent possible, the Software will not store or analyse any Personal Information and Customer Data accessible by the SWOOP Social Network Analytics Platform will be de-identified metadata. However, it may be possible for Customer to re-identify Personal Information about Users by combining Customer Data accessed through the SWOOP Social Network Analytics Platform with other data of the Customer. Customer must comply with all Privacy Laws in respect of any Personal Information it re-identifies using Customer Data provided through the SWOOP Social Network Analytics Platform.

c. Customer acknowledges that SWOOP is using Yammer and Workplace APIs to extract Customer Data, and that SWOOP is bound by terms and conditions for the use of these APIs. SWOOP does not provide warranties for the APIs, or the Yammer/Workplace service in general.

6. Installation

SWOOP Data Mining Application will be implemented on a SWOOP-managed Amazon Web Services instance. The Software will be provided to Customer within thirty (30) days of this Agreement being signed by the last party.  SWOOP is not liable for any delays in installation or operation of the Software caused or contributed to by causes outside SWOOP’s reasonable control.

7. Software Support Service

7.1 Software Support Services period

(a) SWOOP will begin providing the Software Support Services after the Software has been installed and is fully operational (Support Start Date) during Business hours.

(b) SWOOP will provide the Software Support Services from the Support Start Date until the end of the Term.

7.2 Software Support Services

(a) SWOOP will, as part of the Services and at no additional cost to Customer, provide Customer with SWOOP’s standard customer support services during Business Hours.

(b) SWOOP will use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(i) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am Sydney time;

(ii) unscheduled maintenance performed outside Business Hours, provided that SWOOP has used reasonable endeavours to give Customer at least 8 Business Hours’ notice in advance; and

(iii) unscheduled maintenance at any time to address emergencies or material issues with the Services.

(c) Administrators may request technical support relating to the Services by raising a support ticket in SWOOP’s Customer Portal.

(d) In addition, Users can participate in the SWOOP User Community. SWOOP monitors the SWOOP User Community, but does not guarantee any response time for issues raised in the SWOOP User Community.

(e) SWOOP will use reasonable endeavours to ensure that 80% of support tickets raised in accordance with clause 7.2(c) of this SOW will be responded to within eight (8) Business Hours, excluding requests that are caused by unavailability of Yammer or Yammer APIs, or Workplace or Workplace APIs.

(f) SWOOP may change, modify or remove features or functionality of the Services from time to time. SWOOP will:

(i) provide Customer with updates and enhancements as generally released to all SWOOP customers; and

(ii) not make any changes which are likely to have a material adverse impact on Customer’ enjoyment of Services without providing Customer at least 4 weeks’ prior written notice.

(g) Customer may notify SWOOP within 10 Business Days of the notice provided under clause 7.2(f)(ii) above that it wishes to discuss the proposed changes with SWOOP.

(h) If the Customer issues a notice to SWOOP under clause 7.2(g) of this SOW, the parties must discuss in good faith any workarounds which could be made to address Customer’s concerns with the proposed change.

(i) If:

(i) Customer has issued a notice under clause 7.2(g) of this SOW; and

(ii) SWOOP implements the change described in clause 7.2(f)(ii) of this SOW; and

(iii) the parties have not agreed any workarounds despite good faith discussions under clause 7.2(h) of this SOW prior to implementation of the change,

Customer may terminate this Agreement on 30 days’ prior written notice to SWOOP and Customer will be entitled to a pro-rated refund of any prepaid Licence Fees for the period after the effective date of termination under this clause.

8. Aggregated data

(a) Customer acknowledges that SWOOP may introduce cross-organisational benchmarking capabilities into the SWOOP platform.

(b) Customer agrees that selected computations of meta-data generated from Customer Data (such as average activity per user) which do not identify Customer or any of its Users (“Aggregated Data”) may be combined with similar anonymous data from other SWOOP customers (the combined data is “Benchmarking Data”) and that Benchmarking Data may be used by SWOOP and made available to other SWOOP customers.

(c) In consideration for the rights granted under clause 8(b) of this SOW, SWOOP will provide Customer with the ability to access and use Benchmarking Data when and in the manner it makes it available for other SWOOP customers who have granted rights similar to those granted under clause 8(b) in respect of their data.

(d) Customer may only use Benchmarking Data for the purpose of assessing its own Yammer or Workplace usage against the Benchmarking Data, and not for any other purpose.

(e) Customer must not sell, sublicense, commercialise, share or otherwise transfer or distribute Benchmarking Data without SWOOP’s prior written consent.

(f) On termination or expiry of this Agreement, Customer’s right to access and use all Benchmarking Data immediately ceases and Customer must delete or destroy all Benchmarking Data in its possession or under its control, and if requested by SWOOP, certify such deletion or destruction.

9. Licence Fees and Licensed Users

9.1 Licence Fees

(a) In consideration for the Services, Customer shall pay SWOOP the fees specified on the Website for the subscription term (whether monthly or annual) selected by Customer, unless other payment terms have been agreed to in writing between Customer and SWOOP (the “Licence Fee”).

(b) Customer agrees that its subscription be automatically renewed at the Renewal Date for the same subscription term as the previous one, unless it cancels its subscription before the Renewal Date

9.2 Free trial

(a) If Customer registers for a free trial for the Services, SWOOP will make such Services available to Customer on a trial basis free of charge until the earlier of:

(i) the end of the free trial period applicable to Customer;

(ii) the start date of any subscription purchased by Customer for such Services; or

(iii) termination of the trial by SWOOP in its sole discretion.

9.3 Additional Licensed Users

(a) The Customer may increase the number of Licensed Users at any time by notifying SWOOP, in which case the Licence Fees will be increased to the licence fees applicable to the higher number of Licensed Users, as set out in the then current Price List.

(b) If SWOOP determines that during any rolling three month period, the average number of users of the Software and/or Services exceeds the number of Licensed Users, SWOOP may increase the Licence Fees to the licence fees in the then current Price List for the average number of users of the Software and/or the Services in the relevant three month period. Any such increase will take effect on the next anniversary of the Commencement Date.

(c) If the Licence Fees are increased in accordance with clause 9.3(b) above, from the effective date of the increase in the Licence Fees, the number of Licensed Users will be the number of users specified for the new Licence Fees in the Price List.

TERMS AND CONDITIONS

1. Data security and access requirements

(a) Customer Data remains the property of Customer at all times.  Customer grants to SWOOP a non-transferable, non-exclusive, royalty-free licence to use the Customer Data (including any Intellectual Property Rights in the Customer Data) for the purpose of the performance of SWOOP’s obligations and exercise of SWOOP’s rights under this Agreement in accordance with the Privacy Policy.

(b) SWOOP may remove any Customer Data hosted by SWOOP where SWOOP reasonably believes it is appropriate to mitigate or avoid liability to a third party or under applicable law.

(c) The parties agree that Customer Data is Confidential Information of the Customer and, subject to clauses 5(d) and 5(e) of these Terms and Conditions, SWOOP must comply with clauses 5(b) to 5(c) of these Terms and Conditions in respect of that information.

(d) Each party must comply with all Privacy Laws in respect of any Personal Information that party collects, uses or discloses in connection with this Agreement.

(e) Customer must ensure that it has all required consents for the provision of and use by SWOOP in accordance with this Agreement of any Personal Information included in any Customer Data.

(f) For the purposes of any Privacy Laws that draw a distinction between a data controller and a data processor, the parties agree that in respect of all Customer Data, SWOOP is a data processor and the Customer is the data controller.

2. Fees and payment

(a) SWOOP will invoice Customer for the Licence Fees.  Customer must pay all invoices within 30 days of the date of that invoice.

(b) Unless otherwise stated, the Licence Fees exclude all Taxes and all freight, insurance, delivery and other expenses which may be incurred.  Customer agrees to pay all Taxes in connection with this Agreement.

(c) Customer agrees to make payments under this Agreement in full without set-off or counterclaim, and without any deduction or withholding in respect of Taxes imposed by any authority together with any related interest, penalties, fines and expenses in connection with them (unless prohibited by law, in which case Customer must pay an additional amount so that SWOOP receives the amount it would have received if no deductions or withholdings had been required) and in the currency in which the payment is due.

(d) Unless expressly provided for in this Agreement, all Licence Fees are non-refundable.

(e) SWOOP reserves the right to use a third party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder.

3. Goods and Services Tax (GST)

(a) The Licence Fees are exclusive of GST.

(b) Customer must pay to SWOOP in addition to the Licence Fees, the amount payable by SWOOP as GST on each taxable supply made by SWOOP under this Agreement. Customer must pay that additional amount at the same time and in the same manner as the consideration for the taxable supply to which the additional amount relates.

(c) SWOOP must give Customer a tax invoice for each taxable supply in a form which complies with the requirements of the GST Act.

(d)In this clause, the expressions consideration, GST, input tax credit, recipient, supplier, supply, and tax invoice have the same meaning given by the GST Law. GST Law has the same meaning given to that term in the GST Act.

(e) Unless expressly stated otherwise, all amounts set out in this Agreement are exclusive of GST.

4. Intellectual property

(a) The parties agree that other than as expressly provided in this Agreement, nothing in this Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.

(b) If SWOOP provides any material to Customer (other than the Software or Documentation) that contains any of SWOOP’s Intellectual Property Rights (“SWOOP IP”), then SWOOP grants to Customer a non-transferable and non-exclusive licence to use the SWOOP IP solely for the purpose of receiving the Services in accordance with this Agreement.

(c) If Customer provides any material to SWOOP that contains any of Customer’s Intellectual Property Rights (including Customer Data and other materials in which Customer owns the Intellectual Property Rights or which are licensed to Customer), then Customer grant to SWOOP a non-transferable, non-exclusive, royalty-free licence to use those Intellectual Property Rights for the purpose of the performance of SWOOP’s obligations or the exercise of SWOOP’s rights under this Agreement.

(d) If SWOOP creates any material which either:

(i) contains or was created using any SWOOP IP; or

(ii) was created for and/or jointly with Customer under this Agreement,

(each “Created Material”), then upon its creation, Customer assigns all of the Intellectual Property Rights in the Created Material to SWOOP and will obtain and grant to SWOOP any moral rights, waivers and consents necessary to enable SWOOP’s unrestricted use, modification, publication and commercialisation of the Created Material as SWOOP’s material.  This assignment operates as an assignment of future Intellectual Property Rights to the extent that the Created Material is not in existence at the date of this Agreement.

(e) Customer grants SWOOP a royalty-free, revocable, non-exclusive, non-transferrable licence to use an approved Customer logo in SWOOP’s marketing material, subject to Customer’s pre-approval.

5. Confidentiality

(a) Each party acknowledges that the Confidential Information of the other party is valuable to the other party.  Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.

(b) A recipient of Confidential Information may only use the Confidential Information of the discloser for the purposes of performing the recipient’s obligations or exercising the recipient’s rights under this Agreement.

(c) The parties will each at all times during the Term of this Agreement and after its termination:

(i) not disclose the Confidential Information of the other to any person except:

(A) to its officers, employees, representatives and professional advisers from time to time as necessary to comply with its obligations or exercise its rights under this Agreement; and

(B) to any bona fide purchaser or investor or prospective purchaser or investor (and its representatives and advisors) of the whole or part of the assets or shares of the party who received the Confidential Information;

(ii) not assist or permit any person to make any unauthorised use of the discloser’s Confidential Information;

(iii) take reasonable steps to safeguard the Confidential Information, including co-operating with the discloser as reasonably required to protect the confidentiality of its Confidential Information.

(d) Notwithstanding clauses 5(b) to 5(c) of these Terms and Conditions, either party may disclose Confidential Information of the other as required by law or in connection with legal proceedings relating to this Agreement.

(e) The restrictions set out in clause 5(b) to 5(c) of these Terms and Conditions will not apply to information or material which:

(i) is or becomes generally known to the public other than through a breach of this Agreement;

(ii) at the time it was first disclosed to a party, was already in that party’s lawful possession;

(iii) is developed independently by a party; or

(iv) is disclosed to a party by a third party entitled to disclose it.

(f) On expiry or termination of this Agreement or upon receipt of a written request, the parties undertake to deliver, or delete and certify the deletion of, all documents and other materials, including any copies of, in any medium in possession or control which contain or refer to Confidential Information of the other party. However, both parties may retain a single copy of any document or other material containing or referring to the Confidential Information of the other party to the extent required to do so by law.

6. Warranties and compliance with law

(a) SWOOP warrants to Customer that:

(i) the Software and Documentation and their use in accordance with this Agreement will not infringe any rights (including Intellectual Property Rights) of any third party;

(ii) each item of Software:

(A) complies with all applicable laws;

(B) does not contain any code intended or designed to (A) permit access to or use of the Software by any person without the permission of Customer (or its authorised nominee), or (B) damage, delete, disable or otherwise disrupt normal use of the Software (including use of pre-programmed expiry dates); and

(b) Customer warrants to SWOOP that any material provided by Customer to SWOOP under or in connection with this Agreement, and its use in accordance with this Agreement, will not infringe any rights (including Intellectual Property Rights) of any third party.

(c) Each party warrants, represents and undertakes to the other that:

(i) it has full power and authority to enter into this Agreement;

(ii) it is able to grant the rights granted or purported to be granted under the Agreement is able fully to perform its obligations hereunder; and

(iii) it has all licences, permits and other regulatory consents required to perform its obligations under this Agreement (for the avoidance of doubt, Customer acknowledges that Customer must obtain and maintain a licence to use the Yammer Network or Workplace Instance during the Term).

(d) Each party must comply with all applicable laws in the performance of its obligations and exercise of its rights under this Agreement.

7. Insurance

SWOOP shall take out and maintain the following insurance policies with a reputable insurance company:

(a) public liability insurance for an insured amount of at least AUD$10,000,000 per claim;

(b) professional indemnity insurance for an insured amount of at least AUD$5,000,000 per occurrence;

(c) workers’ compensation insurance as required by law.

8. Liability and Third Party Claims

8.1 Limitation of liability

(a) The maximum liability of each party under or in connection with this Agreement, whether for breach of this Agreement, in tort (including negligence) or for any other common law or statutory cause of action arising out of or in connection with this Agreement is limited to the amount of the Licence Fees paid and payable by Customer in the 12 months preceding the event to which the claim relates.

(b) A party’s liability under or in connection with this Agreement will be reduced to the extent the loss or damage is caused by the other party or any of the other party’s representatives.

(c) Nothing in this Agreement operates to limit or exclude liability that cannot be limited or excluded by law. For any liability which cannot be excluded, but can be limited, SWOOP’s liability is limited to, at SWOOP’s option, re-supplying or paying the cost of re-supplying the Services.

8.2 Third Party Claims

(a) Subject to clauses 8.2(b) and 8.3 of these Terms and Conditions, SWOOP will:

(i) defend Customer against all claims made against Customer by any third party alleging that Customer’s use of the Software or Documentation in accordance with the terms of this Agreement infringes the Intellectual Property Rights of that third party (“Third Party Claim”); and

(ii) pay the costs and damages awarded in respect of any Third Party Claim or the amount of any settlement SWOOP enters into in respect of that Third Party Claim.

(b) SWOOP’s obligations under clause 8.2(a) of these Terms and Conditions are subject to:

(i) Customer promptly notifying SWOOP of the Third Party Claim (an in any event no later than 3 Business Days after receiving the Third Party Claim);

(ii) SWOOP being given sole control of the defence and/or settlement of the Third Party Claim;

(iii) Customer not making any admissions relating to the Third Party Claim unless approved by SWOOP in writing; and

(iv) Customer providing, at SWOOP’s cost, all assistance reasonably requested by SWOOP for the defence and/or settlement of the Third Party Claim.

(c) If a Third Party Claim is made or, in SWOOP’s reasonable opinion, is likely to be made, SWOOP may, at SWOOP’s expense:

(i) procure the right for Customer to continue using the Software under the terms of this Agreement; or

(ii) replace or modify the Software to be non-infringing without material decrease in functionality.

(d) If:

(i) SWOOP notifies customer that neither of the options set out in clause 8.2(c) of these Terms and Conditions are available; or

(ii) if SWOOP replaces or modifies the Software in accordance with clause 8.2(c)(ii) of these Terms and Conditions and Customer notifies SWOOP within 10 Business Days of such replacement or modification that, acting reasonably, it considers that the replacement or change has caused a material decrease in functionality of the Software and SWOOP has not rectified that material decrease in functionality within 10 Business Days of the Customer’s notice,

Customer may terminate this Agreement on 30 days’ written notice to SWOOP and Customer will be entitled to a pro-rated refund of any prepaid Licence Fees for the period after the effective date of termination under this clause 8.2(d).

(e) This clause 8.2 sets out Customer’s sole and exclusive remedies and SWOOP’s entire liability in respect of any Third Party Claims.

(f) Clause 8.1 does not apply to an amount payable by SWOOP under this clause 8.2.

8.3 Exception

SWOOP will not be liable for any loss or damage to the extent it is caused by, and will not be required to defend any Third Party Claim to the extent it arises out of:

(a) a breach by the Customer of its obligations under this Agreement;

(b) the use of the Software or the Documentation otherwise than as permitted under this Agreement;

(c) unavailability of the Yammer Network or Workplace Instance any Yammer/Workplace APIs, or functional limitations of the Yammer Network or Workplace Instance or any Yammer/Workplace APIs (such as the amount of Customer Data that can be extracted);

(d) a change to the Software or Documentation not made by SWOOP; or

(e) any act or omission of SWOOP or its Representatives to the extent it was done or omitted to be done in order to comply with any applicable law or terms of use of the Yammer or Workplace APIs.

8.4 Exclusion of indirect and consequential loss and other losses

Each party excludes all liability for any indirect and consequential loss or damage and any loss of profit (whether direct, indirect, anticipated or otherwise), loss of expected savings, opportunity costs, loss of business (including loss or reduction of goodwill), damage to reputation and loss or corruption of data regardless of whether any or all of these things are considered to be indirect or consequential losses or damage, in contract, tort (including negligence), under any statute or otherwise arising from or related in any way to this Agreement or its subject matter.

9. Termination

(a) Either party may terminate this Agreement with immediate effect at any time by giving written notice to the other party (“Notified Party”) if:

(i) the Notified Party commits any material breach of any of this Agreement, and:

(A) in the case of a breach capable of remedy, fails to remedy the breach within 10 Business Days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or

(B) the breach is incapable of remedy; or

(ii) the Notified Party is Insolvent.

(b) Termination under this clause will be without prejudice to any other rights or remedies to which either party may be entitled at law.

(c) If Customer validly terminates this Agreement under clause 9(a) of these Terms and Conditions where SWOOP is the Notified Party, Customer will be entitled to a pro-rated refund of any prepaid Licence Fees for the period after the effective date of termination.

(d) Following termination or expiry of this Agreement:

(i) all rights to the Services granted under this Agreement terminate and Customer must cease using the Software and Documentation; and

(ii) Customer must pay all outstanding invoices and other amounts outstanding as at the date of, or arising as a result of termination.

(e) Clause 8(g) of the SOW and clauses 1, 4(a), 4(d), 4(e), 5, 8, 12, 13, 14 and 15 will survive the termination or expiry of this Agreement for any reason.

10. Assignment

A party must not assign, transfer, novate, encumber or otherwise deal with all or part of its rights or obligations under this Agreement without the other party’s prior written consent, provided that the other party’s consent need not be obtained in relation to the assignment of this Agreement in connection with a merger, divestment, transfer, sale of assets, or change of control or ownership as long as the assignee agrees in writing to be bound by this Agreement.

11. Anti-Bribery

SWOOP warrants that:

(a) SWOOP will, and will take reasonable steps to procure that its Representatives will comply with all applicable anti-bribery and corruption laws and regulations;

(b) SWOOP:

(i) has not taken;

(ii) is not aware that any of its Representatives have taken;

(iii) will not take; and

(iv) will take reasonable steps to procure that its Representatives do not take,

any action in furtherance of an offer, payment, promise to pay, or authorisation of the payment or giving of anything of value (an “Advantage”) to any person (including, without limitation, any Customer Representative) in the knowledge that all or any part of the relevant Advantage will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage; and

(c) SWOOP will notify Customer as soon as reasonably practicable after becoming aware of any breach of the warranties set out in this clause 11.

12. All Notices

Any notice or other communication that is required or permitted to be given under this Agreement will be given in writing and may be delivered by hand or sent by mail or email to the applicable address specified in clause 10 of the SOW or as otherwise advised from time to time.

13. Disputes

(a) Each party must follow the procedures in this clause 13 before starting proceedings (except for urgent injunctive or declaratory relief).

(b) Either party may give written notice of a dispute to the other party (“Dispute Notice”).  A party giving a Dispute Notice must provide details of the history and circumstances of the dispute and give reasons for why the party is disputing the issue.

(c) Following the issues of a Dispute Notice:

(i) the dispute will be referred initially to the parties’ respective Contact Persons.  The Contact Persons will attempt to settle the dispute within 5 Business Days of the referral; and

(ii) if the parties’ Contact Persons are unable to resolve the dispute within those 5 Business Days, or other such period as is agreed, the dispute will be referred to the parties’ respective senior management at a level deemed appropriate by each party given the nature of the dispute; and

(iii) if the dispute remains unresolved after a further 5 Business Days, or other such period as is agreed, either party may pursue any remedy available to it at law to resolve the dispute.

14. General

(a) This Agreement forms the entire agreement between SWOOP and Customer in relation to its subject matter and replaces all previous agreements, arrangements, understandings, representations or other communications between the parties in relation to that subject matter.

(b) Any changes to this Agreement must be agreed in writing by SWOOP and Customer, other than changes to the Licence Fees and number of Licensed Users made in accordance with this Agreement.

(c) This Agreement is governed by the laws of New South Wales, Australia.  The parties agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

(d) No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this Agreement does not prevent a further exercise of that or of any other right or remedy.

(e) Any provision of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable.  The remainder of this Agreement will remain in full force and effect.

(f) This Agreement may be executed in any number of counterparts, each of which, when executed, is an original.  Those counterparts together make one instrument.

(g) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

(h) Each party agrees, at its own expense, to do anything the other party asks (such as obtaining consents, signing and producing documents and getting documents completed and signed):

(i) to bind the party and its successors under this Agreement;

(ii) to give effect to the intentions of the parties, the objectives of this Agreement and the transactions contemplated by it, including negotiating in good faith with respect to any matters requested by any of the parties to this Agreement, and by the execution and delivery of documents and other instruments; and

(iii) to use its reasonable endeavours to cause relevant third parties to do likewise to bind every party intended to be bound under this Agreement.

(i) The parties agree to pay their own legal and other costs and expenses in connection with the preparation and signing of this Agreement.

15. Definitions and Interpretation

15.1 Definitions

Administrator means a User who is authorised by Customer as an administrator of the Yammer Network or Workplace Instance.

Business Day means a day other than a Saturday, Sunday or public holiday in Sydney when banks in Sydney are open for business.

Business Hour means 8.30 am to 5 pm, Sydney time, on a Business Day.

Commencement Date means the date so specified in the SOW.

Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential, and includes including any information relating to the financial affairs, assets or liability of a party, or any information relating to the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or services.

Contact Person of a party means the person listed in clause 10 of the SOW, as updated by that party from time to time by written notice to the other party.

Corporations Act means the Corporations Act 2001 (Cth).

Created Material has the meaning given in clause 4(d) of the Terms and Conditions.

Customer Data means all data stored, processed or created by or on behalf of Customer (including any customer data) as part of the Services and includes Personal Information, but does not include the Software, the Documentation, SWOOP IP, Created Material or any other Intellectual Property Rights of SWOOP or its licensors.

Dispute Notice has the meaning given in clause 13 of the Terms and Conditions.

Documentation means all documentation reasonably necessary to effectively use, modify and adapt the Software, including the documentation specified in SOW and any amendments or updates to such documentation.

GST has the meaning given to it in the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time.

Initial Term has the meaning given in clause 3(a) of the SOW.

A person is Insolvent if:

(a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);

(b) it has had a Controller (as defined in the Corporations Act) appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property;

(c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party to this agreement);

(d) an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;

(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;

(f) it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this agreement reasonably deduces it is so subject);

(g) it is otherwise unable to pay its debts when they fall due; or

(h) something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction.

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Licence Fees means the fees payable by Customer for the Services set out in clause 9 of the SOW, as varied in accordance with the terms of this Agreement.

Licensed Users means the maximum number of Users permitted to access the Software, which, as at the Commencement Date is set out in clause 9 of the SOW.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Price List means the price list for the Services (available on request), as amended by SWOOP from time to time.

Privacy Laws means the Privacy Act 1988 (Cth) and all other applicable privacy laws or data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information.

Renewal Term has the meaning given in clause 3(b) of the SOW.

Representatives means, in relation to each party, any person acting for or on behalf of that party and includes any director, officer, employee, agent, contractor, sub-contractor, legal advisor or professional advisor.

Services means SWOOP’s provision of the services set out in the SOW, including provision of the Software and Software Support Services.

Software means the SWOOP Social Network Analytics Platform and the SWOOP Data Mining Application, and includes any subsequent releases, updates or patches of that software provided to Customer under this Agreement.

Software Support Services means the maintenance and support services set out in clause 7 of the SOW.

SOW means the section of this Agreement titled “Statement of Work (“SOW”)”.

SWOOP IP has the meaning given in clause 4(b) of the Terms and Conditions.

SWOOP Social Network Analytics Platform means the software described in clause 5(a)(ii) of the SOW.

SWOOP Data Mining Application means the software described in clause 5(a)(i) of the SOW.

Taxes means taxes, levies, imposts, charges and duties (including stamp and transaction duties, but excluding GST) imposed by any authority together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, SWOOP’s net income.

Term means the Initial Term plus all Renewal Terms.

Terms and Conditions means the section of this Agreement titled “Terms and Conditions”.

Third Party Claim has the meaning given in clause 8.2 of the Terms and Conditions.

User means any employee, agent or contractor of the Customer authorised to access the Yammer Network or Workplace Instance.

Workplace Instance means the Customer’s Workplace Instance as made available to the Customer by Facebook.

Workplace APIs means the APIs that send data from Workplace to SWOOP to enable SWOOP to provide the Services to the Customer.

Yammer APIs means the APIs that send data from Yammer to SWOOP to enable SWOOP to provide the Services to the Customer.

Yammer Network means the Customer’s Yammer network as made available to the Customer by Microsoft.