Software Terms of Use

Part 1 - General Terms

1. Introduction and Term

1.1 These Software Terms of Use and its schedules and any additional agreements, including any Software Proposal, Statement of Work, Website Terms and Conditions and Privacy Policy, linked or located at stylearcade.com and stylearcade.com.au (Terms) form a legally binding agreement between Style Arcade Pty Ltd (ACN 601 545 644) of 111 Flinders Street, Surry Hills, NSW 2010, Australia (Style Arcade, we or us) and the Client as set out in Schedule 1 (the Client or you), collectively referred to as the parties or a party.

1.2 Any references to a 'Schedule' in these Terms mean a reference to the relevant Schedule set out in the Software Proposal we provide to you (Software Proposal). If any Schedule is referenced in these Terms but not included in the Software Proposal, the relevant Schedule does not apply. The Software Proposal is incorporated into these Terms by reference.

1.3 Any special conditions set out in the Software Proposal apply to these Terms (Special Conditions). In the event of an inconsistency, the Special Conditions prevail over the Software Terms of Use to the extent of that inconsistency.

1.4 We have developed, and own software (Software), including retail merchandise buying and planning software (Fashion Analytics), software which allows Multibrand Retailers such as department stores and online marketplaces, to manage communication with Brand Retailers, in a single platform (Brand Portal Software) and software which assists with range planning (Range Plan). Style Arcade may provide you with access to the Software on a subscription basis in accordance with these Terms. We also provide services in relation to the provision of such Software, including customisation and configuration of the Software (Related Services, as set out in Part 3 of these Terms).

1.5 We have agreed to grant you a right to access and use the Software as set out in Schedule 2, and provide the Related Services to you, subject to these Terms (collectively, the Services).

1.6 By subscribing to and using the Software and obtaining the Related Services and/or signing the Software Proposal, you acknowledge that you have read, understood and accepted these Terms.

1.7 These Terms commence on the Effective Date and continue until the Subscription Date (Activation Period). After the Activation Period and from the Subscription Date, these Terms will continue for the Initial Term. After the Initial Term, these Terms will continue automatically on a monthly basis and for any period that Style Arcade provides Services, unless terminated earlier in accordance with these Terms (Term).

1.8 If you have multiple Brands, these Terms will apply to each Brand as if they were each receiving the Services under separate Terms, including in respect of:

(a) the Services, which will be provided to each Brand;

(b) Activation Services, which will be provided to each Brand (if applicable);

(d) the Subscription Date will be in reference to the delivery of the Services and Deliverables in respect of each Brand;

(e) the Go Live date, in respect of each Brand; and

(f) the Payment Terms, in which dates will be determined in respect of each Brand.

2. Definitions and interpretation

2.1 In these Terms, unless the context otherwise requires:

Activation SOW means the Statement of Work for Activation Services located at https://www.stylearcade.com/legal-portal/statement-of-work.

Activation Period means the period between the Effective Date and the Subscription Date as set out in clause 1.7;

Acceptance Criteria means the criteria that are specified in the relevant Statement of Work and used to verify the Deliverables by you;

Authorised User means your employees and individual contractors that use the Services with your authorisation from time to time;

Brands means each of the brands owned by you in respect of which we are to provide the Services;

Brand Retailer means a user of the Software which sells or may potentially sell products through a Multibrand Retailer (for the avoidance of doubt, you may be considered a Brand Retailer as specified in Schedule 1);

Business Day means any day other than a Saturday, Sunday, or public holiday in Sydney, New South Wales, Australia;

Client means the party specified as such in Schedule 1;

Confidential Information means a Disclosing party’s non-public information (including data relating to Brand Retailers and Multibrand Retailers), in any form, and all copies, summaries and extracts, regardless of whether they are identified as confidential at the time of disclosure, excluding any information that:

(a) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of the recipient;

(b) was known to Recipient, free of any confidentiality obligations, before its disclosure by Discloser;

(d) is independently developed by Recipient without use of the Confidential Information;

Data has the meaning set out in clause 7;

Deliverables means the services Style Arcade will provide to you as specified relevant Statement of Work;

Documentation means any information published by us including reference material, help documentation and product information relating to the use of the Software;

Effective Date means the date specified as such in Schedule 1;

Electronic Signature means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message;

Fees means any fee required to be paid under these Terms including Subscription Fees and Service Fees;

Fix means a minor amendment in the Software, intended to remove bugs or alter minor features which impair the Software’s functionality;

Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care but does not include not making a payment due under these Terms;

Go Live means:

(a) if Activation Services are provided per Schedule 1, the stage of the Software with respect to each Brand after the date that the Deliverables set out in the Activation SOW are accepted or deemed accepted by you, in accordance with the Activation SOW; or

(b) if Activation Services are provided per Schedule 1 or if the Activation Services set out in the Activation SOW have already been provided by Style Arcade to you, then the Software is deemed to be in the Go Live stage.

GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Law (A New Tax System (Goods and Services Tax) Act 1999 (as amended)) and all related ancillary legislation which provides for a broad-based consumption tax on the supply of Goods and Services;

Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how, source code, trade secret and any other intellectual or industrial property rights, anywhere in the world whether or not registered;

Multibrand Retailer means a stockist of Brand Retailers, such as department stores and online marketplaces (for the avoidance of doubt, you may be considered a Multibrand Retailer as specified in Schedule 1);

Multibrand Retailer Data has the meaning set out in clause 6.1;

Payment Terms means the terms for the payment of any Fees due under these Terms as specified in Schedule 1;

Penalty Interest Rate means the rate of interest for the Post Judgement amount set by the Local Court of New South Wales (http://www.localcourt.justice.nsw.gov.au/Pages/Practice_procedure/interest_rates.aspx);

Related Services means any additional services required or requested by you in relation to the Software in accordance with clause 24, including the Activation Services or as set out in a Statement of Work, which may include configuration, implementation, customisation, consulting, and training;

Representative means the person nominated by you in accordance with clause 3.1 as the contact person receiving correspondence and giving instructions from and to Style Arcade and whom you represent is authorised to give instructions and make decisions on your behalf;

Review Period means the period set out in the relevant Statement of Work for approval/verification of the Deliverables;

Services means Style Arcade's provision of Software and the Related Services under these Terms;

SLA means our Service Level Agreement as set out in clause 23.4;

Statement of Work or SOW means a document titled "Statement of Work" which makes reference to these Terms, specifying details of the additional Services to be provided to you by Style Arcade, fees/costs and any other details deemed relevant by Style Arcade;

Style Arcade means the party described as such in clause 1.1;

Subscription Date means the date specified as such, as set out in Schedule 1;

Terms mean these Software Terms of Use, the Software Proposal and its schedules and annexures and any subsequent variation as specified in clause 1.1;

Updates means a minor amendment in the Software, which may contain new features or minor improvements and shall be marked as a new sub-version number; and

Upgrades means a material amendment in the Software, which contains new features and or major performance improvements and shall be marked as a new version number.

2.2 Interpretation

In these Terms, unless the context requires otherwise:

(a) words in the singular include the plural and vice versa;

(b) headings (including those in brackets at the beginning of paragraphs) are for convenience

only and do not affect the interpretation of these Terms;

(d) a reference to a clause, paragraph, schedule or annexure is a reference to a clause,

paragraph, schedule or annexure, as the case may be, of these Terms;

(e) if any act which must be done under these Terms is to be done on a day that is not a

Business Day then the act must be done on or by the next Business Day;

(f) a reference to any legislation includes subordinate legislation and all amendments,

consolidations or replacements from time to time;

(g) a reference to a natural person includes a body corporate, partnership, joint venture,

association, government or statutory body or authority or other legal entity;

(h) the words “includes” and “including” or words of similar effect are not words of limitation;

(i) no clause of these Terms shall be interpreted to the disadvantage of a party merely

because that party drafted the clause or would otherwise benefit from it;

(j) a reference to a party includes the party’s successors, assigns and persons substituted by

novation;

(k) a reference to a covenant, obligation or agreement of two or more persons binds or

benefits them jointly and severally;

(l) a reference to time and date is to local time and dates in New South Wales, Australia; and

(m) unless specified otherwise, a reference to “$” or “dollars” refers to Australian dollars.

3. Client obligations

3.1. You agree that you will:

(a) upon entering into these Terms appoint a Representative who will be, responsible for your

project management, technical engagement and acceptance of any Deliverables and

Related Services;

(b) at all times fully cooperate with Style Arcade in giving prompt instructions and informing

Style Arcade of any data or system changes that could impact the data integrity within the

Software;

match source systems/third party data sources to Style Arcade;

(d) promptly, within the time frame specified in our SLA (if applicable), provide to Style Arcade

the necessary technical resources to enable an automated extract of its Data feeding into

the Software; and

(e) promptly provide to Style Arcade all necessary co-operation and assistance as requested

by Style Arcade to allow Style Arcade to provide the Software and Related Services.

3.2 You agree that you are solely responsible and liable for:

(a) immediately notifying Style Arcade of any changes to its details, connections and requirements or any other details which may affect the provision of the Services, including

but not limited to, its connections with any third-party data sources;

(b) checking and fixing any data validation issues between your source systems/third party

data sources and Style Arcade;

equipment needed to internally access the Services; and

(d) implementing, maintaining, and updating all necessary and proper procedures and

software for safeguarding against malicious content, including but not limited to computer

infection, viruses, worms, trojan horses, and other code that manifest contaminating or

destructive properties.

3.3. You acknowledge that the delivery of the Services may be dependent on you fulfilling your obligations under these Terms in a timely manner. Without limiting Style Arcade’s other rights under these Terms, if you fail to reasonably comply or delay in complying with any of your obligations under these Terms, Style Arcade may, at its election:

(a) suspend performance of the Services for the period of the non-compliance; or

(b) continue to provide the Services and charge you for any reasonable additional costs

incurred by Style Arcade.