Customer Terms of Service
These Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using our Quitch platform (the “Services”). Please read them carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to a Course by an Organisation, the User Terms of Service (the “User Terms”) govern your access and use of the Services.
First things First
These “Customer Terms” Form a Part of a Binding “Contract”
These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Contract” between the Customer and us. If any terms in the Customer Specific Supplement apply to the Customer (e.g., if the Customer is a University or School), those terms are also incorporated herein by reference and form part of the Contract. “We,” “our” and “us” refers to the applicable Scapegrace entity in the section entitled “Which Scapegrace Entity is the Customer Contracting With?” below. If you do not have such authority, you must not accept these terms and conditions and you must not use the Services. You must not access the Services if you are our competitor, except with our prior written consent.
Your Agreement On Behalf of “Customer”
If you continue to use the Quitch Platform to manage an Organisation (i.e., a digital space where a group of users may access the Services), invite users to that Organisation, 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 the Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of the Customer before proceeding.
Customer Choices and Instructions
Who is “Customer”? (Hint: There can be only one)
“Customer” is the organisation that you represent in agreeing to the Contract. If your Organisation is being set up by someone who is not formally affiliated with an organisation, the Customer is the individual creating the Organisation. For example, if you signed up using a personal email address and invited a couple of friends but haven’t formed a company yet, you are the Customer.
What This Means for the Customer—and for Us
Individuals authorised by the Customer to access the Services (an “Authorised User”) may submit content or information to the Services, such as messages or files (“Customer Data”), and the Customer may exclusively provide us with instructions on what to do with it. For example, the Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign Organisations or share Course Content, since these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.
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) ensure the transfer and processing of Customer Data under the Contract is lawful.
User Subscriptions and Purchase Agreement
No matter the role, a user subscription is required for each Authorised User. A subscription is assigned through the Services interface, or in some cases, via an agreement entered into between the Customer and us. Each Authorised User must agree to the User Terms to activate their account. Each user subscription 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 the relevant Purchase Agreement. During a subscription term, adding more subscriptions is fairly easy. Unless the Purchase Agreement says otherwise, the Customer may purchase more subscriptions and all will terminate on the same date.
Purchasing Decisions
We may share information about our future product plans because we like transparency. Our public statements about those product plans are an expression of intent, but do not rely on them when making a purchase. If the 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.
Choosing to be a Beta Tester
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 full production release so they are made available “as is,” and to the extent permitted by law any warranties or contractual commitments we make for other Services do not apply. Should the 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.
Feedback is Welcome
The more suggestions our customers make, the better the Services become. If the Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so the Customer grants us (for itself and all of its Authorised Users and other Customer personnel) an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to the 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-Scapegrace Content
Our Services provides a platform that third parties use to deliver content that complement the Customer’s use of the Services. The content is not our content, so we do not warrant or support non-scapegrace content, and, ultimately, the customer (and not us) will decide whether or not to use them. Any use of non-scapegrace content is solely between the customer and the applicable third party provider.
If a Non-Scapegrace content is used for a Customer’s Organisation, 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 third party provider, except to the extent that is attributable to our gross negligence or wilful default.
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.
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.
Customer is (i) to use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify us promptly of any such unauthorised access or use, (ii) not to create derivate works based on the Services except as authorised herein, (iii) not to copy, frame or mirror any part or content of the Services, other than copying or framing on the Customer’s own intranets or otherwise for the Customer’s own internal business purposes, (iv) to the extent permitted by law, not reverse engineer the Services, (v) not to access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services and (v) to use the Services only in accordance with our Acceptable Use Policy and applicable laws and government regulations. The Customer must not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorised access to the Services or related systems or networks.
We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the conduct of any Customer or the way the 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 16. The Customer must ensure that all Authorised Users are over 16 years old or appropriate parental consent has been secured. The Customer and their Authorised Users are solely responsible for providing high speed internet service to access and use the Services.
Our Removal Rights
If we believe that there is a breach of the Contract that can simply be remedied by the Customer’s removal of certain Customer Data or the Customer’s disabling of Non-Scapegrace content, we will, in most cases, ask the Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if the Customer does not take appropriate action, or if we believe there is a credible risk of harm to us (including risk of legal action), the Services, Authorised Users, or any third parties. Without limiting our other rights under this Contract or at law, we may, at our discretion, suspend, restrict or downgrade access to or the functionality of the Services if we (acting reasonably) determine or suspect you to be engaging in prohibited or at risk use of the Services.
Payment Obligations
Payment Terms
For Customers that purchase our Services, fees are specified in the Purchase Agreement(s) — and must be paid in advance, unless the Purchase Agreement indicates otherwise. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. If we agree to invoice the Customer by email, full payment must be received within thirty (30) 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”). The Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. For the avoidance of doubt, the Customer must pay an amount to us equivalent to any goods or services or value added tax that we are liable for on the supply of the Services to the Customer at the same time as the Customer pays their invoice. Should any payment for the Services be subject to withholding tax by any government, the Customer will reimburse us for such withholding tax.
Non-Payment
If any fees owed to us by the 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, we may suspend the Customer Services until those amounts are paid in full, so long as we have given the Customer ten (10) or more days’ prior notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, the Customer acknowledges and agrees that a suspension will result in a loss of access to features, functionality and Customer Data. If any fees are not received from the Customer by the due date, then at our discretion, fees will accrue late interest at the rate of 0.5% of the outstanding balance per month.
Our Responsibilities
Providing the Services
Customer isn’t the only one with responsibilities; we have some, too. We will (a) make the Services available to the Customer and its Authorised Users as described in the Contract on a non-exclusive basis for the use of the Customer in its own internal business activities; and (b) not use or process Customer Data for any purpose without the 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.
Keeping the Services Available
We will use commercially reasonable efforts to make the Services 99% available, excluding planned downtime. We expect planned downtime to be infrequent and will endeavour to provide the Customer with advance notice (e.g., through the Services), if we think it may exceed two (2) continuous hours. Our Services are only available as an application accessible through and hosted on a cloud platform. Our services are subject to the limitations, delays, and other problems inherent in the use of the cloud platform and the vagaries of Internet and electronic communications and protocols. We are not responsible for any delays, delivery failures, or other damage or loss resulting from such problems.
Protecting Customer Data
The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described in our Security Practices page. 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. The Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in the Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what the Customer’s Authorised Users do with Customer Data. That is the Customer’s responsibility.
For the absence of doubt, the Customer (i) remains fully and exclusively liable for your obligations under your local privacy laws and legislation, including the General Data Protection Regulations (GDPR) at all times as the controller of the data; (ii) represents and warrants that the Customer is in and will remain in compliance with GDPR if it is obliged by law to comply with GDPR; and (iii) acknowledge and agree that in the event of a conflict or inconsistency between our own obligations under GDPR and this Contract, our obligations under GDPR shall prevail and the Customer has no claim or remedy against us for such conflict or inconsistency.
If the GDPR applies to processing of Customer Data, our handling of Customer Data is subject to the terms and conditions of Annexure A (Data Processing Provisions).
The Scapegrace Extended Family
We may leverage our employees, those of our related body corporate and affiliates and third party contractors (the “Scapegrace Extended Family”) in exercising our rights and performing our obligations under the Contract. We will be responsible for the Scapegrace Extended Family’s compliance with our obligations under the Contract.
Ownership and Proprietary Rights
What’s Yours is Yours…
As between us on the one hand, and the Customer and any Authorised Users on the other, 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 and the Scapegrace Extended Family a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-Scapegrace content created by or for Customer, only as reasonably necessary (a) to provide, maintain and update 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.
And What’s Ours is Ours
We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to the Customer a non-sublicensable, non-transferable, non-exclusive, limited license for the Customer and its Authorised Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.
Term and Termination
Contract Term
As further described below, a Purchase Agreement has a term that may expire or be terminated. The Contract remains effective until all user 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 a relevant Purchase Agreement says something different, (a) all user subscriptions automatically renew (without the need to go through the Services-interface) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit 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 user subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or the 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. The 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 the Customer if we reasonably believe that the Services are being used by the Customer or its Authorised Users in violation of applicable law or our policies.
Effect of Termination
Upon any termination for cause by the Customer, upon providing us with notice to us, the termination will take effect at the end of the current billing period, unless otherwise agreed in writing by Scapegrace. Upon any termination for cause by us, the 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 the 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
During the term of an organisation’s subscriptions, the 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 the Customer has different options, the 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 an Organisation’s user subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. Please review our Security Practices page for more information on how the Customer itself can initiate deletion.
Representations Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. The 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 and as permitted law, 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. The customer acknowledges that we do not warrant that the services will be uninterrupted, timely, secure, or error-free.
Application of Australian Consumer Law
The Quitch platform is an educational tool intended for use by businesses and organisations and not for consumer purposes.
To the maximum extent permitted by law, the Customer hereby acknowledges and agrees that any statutory warranties, guarantees or implied conditions under consumer laws do not apply in respect of the Services or are incorporated as part of these Customer Terms. If however any consumer laws (e.g., in Australia, the Competition and Consumer Act 2010 (Cth)) do apply and such statutory warranties, guarantees or implied conditions cannot otherwise be lawfully excluded or negated, nothing in these Customer Terms will restrict, exclude or modify any statutory warranties, guarantees, benefit of implied conditions or other rights or remedies you have. Our liability in respect of failure to meet any such statutory warranties, guarantees or implied conditions is limited to the extent permitted by law to the supplying of the relevant Services again or the payment of the cost of having the relevant Services supplied again.
Limitation of Liability
Other than in connection with a party’s indemnification obligations hereunder or as permitted by law, in no event will either the customer’s or the scapegrace extended family’s 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 the customer hereunder in the twelve (12) months preceding the last event giving rise to liability except in respect of any liability we may have for damage to your personal property or in respect of your personal injury or death. The foregoing will not limit the customer’s payment obligations under the “payment terms” section above.
Except to the extent permitted by law, in no event will either the customer or any member of the scapegrace extended family have any liability to the other party or to any third party for any lost profits or revenues or for any indirect, special, incidental, consequential, exemplary 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.
The Services may support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorised use of or access to the Services. We therefore will not be responsible for any damages, losses or liability to the Customer, Authorised Users, or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA. Additionally, the 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 the Customer, Authorised Users, or anyone else, if such information is not kept confidential by the 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.
Our Indemnification of the Customer
We will defend the 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 the Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against the Customer in connection with or as a result of, and for amounts paid by the Customer under a settlement we approve of in connection with, a Claim Against the Customer; provided, however, that we will have no liability if a Claim Against the Customer arises from (a) Customer Data or Non-Scapegrace content; 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). The 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 the Customer’s exclusive remedy against us and the Scapegrace Extended Family for, any Claim Against the Customer.
Customer’s Indemnification of Us
Customer will defend Scapegrace and the members of the Scapegrace Extended Family (collectively, the “Scapegrace Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to the Customer’s or any of its Authorised Users’ breach of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the Scapegrace Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Scapegrace Indemnified Party in connection with or as a result of, and for amounts paid by a Scapegrace Indemnified Party under a settlement the Customer approves of in connection with, a Claim Against Us. We must provide the Customer with prompt written notice of any Claim Against Us and allow the Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting the Customer’s defense and settlement of such matter. To the extent permitted by law, this section states your sole liability with respect to, and the Scapegrace Indemnified Parties’ exclusive remedy against the Customer for, any Claim Against Us.
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.
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 the Customer includes Customer Data. If something is labelled “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 titled “Feedback is Welcome,” “Non-Scapegrace Content,” “Our Removal Rights,” “A Condition of Use,” “Payment Terms,” “The Scapegrace Extended Family,” “What’s Yours is Yours…,” “And What’s Ours is Ours,” “Effect of Termination,” “Data Portability and Deletion,” “Representations; Disclaimer of Warranties,” “Application of Australian Consumer Law, ” “Limitation of Liability,” “Our Indemnification of the Customer,” “Customer’s Indemnification of Us,” “Limitations on Indemnifications,” “Confidentiality” and “Survival,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Contract.
General Provisions
Publicity
Customer grants us the right to use the 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 the Customer’s standard trademark usage guidelines as provided to us from time-to-time. We will not list customers who do not want to be listed, so the Customer may send us an email to feedback@quitch.com stating that they does not wish to be used as a reference.
Force Majeure
Neither us nor the 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 Notifications
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to the Customer through the Services (e.g., a Quitch notification). Notices to Scapegrace will be sent to feedback@quitch.com, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to legal@quitch.com. 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 Purchase Agreements). If we make a material change to the Contract, we will provide the Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with the Customer’s account or by messaging the Customer through the Services. The Customer can review the most current version of the Customer Terms at any time by visiting this page and 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 the Customer (or any Authorised User) accesses or uses the Services after the effective date, that use will constitute the Customer’s acceptance of any revised terms and conditions.
Waiver
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 parties agree that the provision may 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 the Scapegrace Extended Family, neither party may 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 reorganisation, or sale of all or substantially all of its assets. The Customer will keep its billing and contact information current at all times by notifying Scapegrace 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 the Customer, we will refund the 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.
Which Scapegrace Entity is the Customer Contracting With?
All references to ‘Scapegrace,’ ‘we,’ or ‘us’ under the Contract, refers to:
Scapegrace Pty Ltd
ABN 88 611 230 17
PO Box 2279
Hawthorn Post Office
Victoria, 3122, Australia
Governing law
What law will apply in any dispute or lawsuit arising out of or in connection with the Contract, and which courts have jurisdiction over any such dispute or lawsuit?
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This Agreement will be governed by the laws of Victoria and the Commonwealth of Australia.
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The parties subject themselves to the non-exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia for all proceedings arising in connection with this Agreement.
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the applicable venue above will have non-exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the non- exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
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 the 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 the Customer (if any), (3) the Customer Terms, (4) the documents annexed to these Customer Terms and (5) 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 Agreement, 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.
Last revised on 13th June, 2019