part 1 – general terms
1.3. Style Arcade has developed and owns 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 provides access to the Software on a subscription basis. It also provides 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).
1.4. Style Arcade has agreed to grant the Client a right to access and use the Software as set out in Schedule 2, and to provide to the Client the Related Services, subject to these Terms (collectively, the Services).
1.5. By subscribing to and using the Software and obtaining the Related Services and/or signing the Software Proposal, the Client acknowledges that it has read, understood and accepted these Terms.
1.6. These Terms commence on the Effective Date and continue for the Initial Term, any Renewed Term and for any period that Style Arcade provides Services to the Client on a monthly basis, unless terminated earlier in accordance with these Terms (Term).
2. Definitions and interpretation
2.1. In these Terms, unless the context otherwise requires:
Acceptance Criteria means the criteria that are specified in the relevant Statement of Work and used to verify the Deliverables by the Client;
Authorised User means the Client's employees and individual contractors that use the Services with the Client's authorisation from time to time;
Brand Retailer means a user of the Software which sells or may potentially sell products through a Multibrand Retailer (for the avoidance of doubt, the Client 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 written 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;
(c) becomes known to recipient, free of any confidentiality obligations, from a source other than discloser; or
(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 the Client 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 start date as specified 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 the stage of the Software after the date that the Deliverables set out in Schedule 3 are accepted or deemed accepted by the Client, in accordance with Schedule 3;
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, the Client 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 4;
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 the Client in relation to the Software in accordance with clause 24, including as specified in Schedule 3 or as set out in a Statement of Work, which may include configuration, implementation, customisation, consulting, and training;
Representative means the person nominated by the Client in accordance with clause 3.1 as the contact person receiving correspondence and giving instructions from and to Style Arcade and whom the Client represents is authorised to give instructions and make decisions on its 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;
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 the Client 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;
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.
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;
(c) any reference to gender includes the other gender;
(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. The Client agrees that it will:
(a) upon entering into these Terms appoint a Representative who will be, responsible for the Client’s 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;
(c) promptly, within the time frame specified in Schedule 5, provide to Style Arcade the necessary technical resources to enable an automated extract of its Data feeding into the Software; and
(d) 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. The Client agrees that it is solely 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) obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Services; and
(c) 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. The Client acknowledges that the delivery of the Services may be dependent on the Client fulfilling its obligations under these Terms in a timely manner. Without limiting Style Arcade’s other rights under these Terms, if the Client fails to reasonably comply or delays in complying with any of its 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 the Client for any reasonable additional costs incurred by Style Arcade.
3.4. The Client acknowledges that it remains liable to pay the Fees during any period of suspension under this clause 3.
3.5. Style Arcade shall not be liable for any breach, delay or non-performance of Services due to any breach or delay of the Client, or any third party (including but not limited to internet service providers, website hosts, etc.) in complying with its obligations under these Terms, including but not limited to, unavailability of the whole or part of the Services or Software due to the Client failing to comply with clause 3.2.
3.6. Style Arcade will not be liable for the consequences of any omitted or erroneous data or information provided by the Client or otherwise imported into the Services including through a data feed or API from the Client, and/or its impact on the Services. Any additional costs resulting from the provision of additional Services, or the variation of a provision for Services necessary to remedy the consequences of any omitted or erroneous data or information will be payable by Client on demand by Style Arcade.
4. Fee and Charges
4.1. The Client agrees that it will pay to Style Arcade the Fees, plus any applicable taxes on the dates specified in the Payment Terms or as set out in an invoice (Due Date). The Client must pay the Fees by the Due Date, electronically in cleared funds without any set off or deduction.
4.2. Unless otherwise specified in writing, the Fees are exclusive of GST.
4.3. If any GST is imposed on any supply made under these Terms, then the party making the supply will collect the GST from the recipient in addition to the Fees. The GST is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made.
4.4. If Schedule 4 specifies that payments will be processed by direct debit, then the Client agrees that on each Due Date, Style Arcade may debit the amounts that will be due on that Due Date from the Client's nominated account via Style Arcade's payment processing system. The Client consents to and accepts liability for all recurring charges to its credit or debit card (or other payment method, as applicable) based on this direct debit clause, without further authorisation from the Client and without further notice except as required by law.
4.5. If Schedule 4 does not specify that payments will be processed by direct debit, Style Arcade will provide the Client with valid GST tax invoices in accordance with the Payment Terms or as otherwise specified by Style Arcade in writing.
4.6. If payment terms are not specified in the Payment Terms or an invoice, the Client must pay Style Arcade within fourteen (14) days of the date of invoice.
4.7. Style Arcade may charge interest on overdue amounts, interest will be calculated from the Due Date to the date of payment (both inclusive) at an annual percentage rate equal to the Penalty Interest Rate.
4.8. Except during the Initial Term, Style Arcade may vary the Fees in its sole discretion by giving at least 30 days’ written notice. Fees updated under this clause are deemed to be the Fees listed in the relevant Schedule. If the Client does not wish to pay the varied Fees, the Client may terminate the Terms on no less than 20 days’ notice, provided that the notice is received by us before the effective date of the Fee increase, and that all due and outstanding Fees are paid for on or before the date of such notice. If the Client does not terminate these Terms in accordance with this clause, the Client is deemed to have accepted the increased Fees.
4.9. If the Client does not pay the Fees on time, then Style Arcade may elect, without notice, to suspend the Client's right to access and use the Software and/or may withhold the provision of Related Services or Deliverables. The Client acknowledges that it remains liable to pay the Fees during any period of suspension under this clause 4.9.
4.10. The Client is liable for any fees or charges payable to any bank or third party processor due to any failure to process any payments (including insufficient funds or incorrect or out-of-date details).
5. Ownership of Software and Deliverables
5.1. The parties acknowledge and agree that title to, and all Intellectual Property Rights in the Software, Deliverables and any Documentation remain the property of Style Arcade (or its licensors).
5.2. The Client agrees that it will not, either on its own or via any third party:
(a) copy, modify, publish, adapt, sub-licence, translate, sell, distribute, transmit, perform, display, reverse engineer, circumvent, decipher decompile or otherwise disassemble any portion of the Style Arcade's Intellectual Property Rights or Services or cause or assist others to do so;
(b) challenge Style Arcade's ownership of its Intellectual Property Rights;
(c) infringe Style Arcade's Intellectual Property Rights; or
(d) use or make any intellectual property that is similar to Style Arcade's intellectual property or Intellectual Property Rights.
5.3. Style Arcade warrants to the Client that, as at the date of these Terms, to the best of its knowledge:
(a) the Software does not violate or infringe any third party’s claims regarding intellectual property, patents and/or trademarks; and
(b) that no legal action has been taken against it for any infringement or violation of any third party intellectual property rights.
6. Ownership of Multibrand Retailer Data
6.1. As part of the Services, the Client may be provided with access to data which is owned by Multibrand Retailers, such as sales figures and statistics, financial data and product and line performance of the Client which has been collected and stored from, on or via the Multibrand Retailer’s platform (Multibrand Retailer Data). For the avoidance of doubt, this clause 6 does not apply to a Client that is a Multibrand Retailer, in relation to its own Multibrand Retailer Data.
6.2. Subject to these Terms, Style Arcade may grant the Client as part of the Services, a non-exclusive, revocable licence to access and view the Multibrand Retailer Data for the sole purposes of:
(a) communicating with the Multibrand Retailer; and
(b) internal use by the Client, in order to make business and buying decisions related to the Client's business.
6.3. The Client acknowledges and agrees that the Multibrand Retailer Data is commercially sensitive data and is considered Confidential Information of Style Arcade in accordance with clause 13 (Confidentiality). Any use of the Multibrand Retailer Data by the Client outside of the licence granted under clause 6.2 is considered a breach of these Terms at both clauses 6.2 and 13 and Style Arcade may terminate these Terms in accordance with clause 12.
6.4. For the avoidance of doubt, the Client agrees that it will not modify, copy, distribute, display, reproduce, publish, license, perform, transmit, create derivative works from, transfer, trade or sell or re-sell any information, the Software or Services, including any Multibrand Retailer Data.
6.5. Notwithstanding clause 6.1, your access to the Multibrand Retailer Data and continued use of the Software is contingent on payment of any relevant Fees and is subject to the Client complying with these Terms.
7. Ownership of Data
7.1. The parties acknowledge and agree that title to, and all Intellectual Property Rights in, the data that the Client supplies to Style Arcade, including data automatically collected by Style Arcade from the Client through a data feed or API or as uploaded or otherwise entered into the Software by the Client (Data) remains the property of the Client (except to the extent that such data is Multibrand Retailer Data that is not owned by the Client).
7.2. The Client acknowledges that as part of the Services, the Data and Multibrand Data may be transformed to output statistics and financial data or for generating reports, purchase order sheets or other documents for the Client's benefit. The Client acknowledges and agrees that it is solely responsible for checking such data outputs and any document generated through the Services. Style Arcade does not make any warranties, representations or guarantees that such statistics, financial data or documents generated from such data is accurate or free from error.
7.3. Some of the fields of data which may be included as part of the Data under these Terms is set out below:
(a) Cost price $ and %;
(b) COGS price $ and %;
(c) Profit $ and %;
(d) Markdown $ and %;
(e) Impressions; and
(f) Product Detail Page clicks.
7.4. The Client grants Style Arcade a non-exclusive, perpetual, royalty-free, worldwide, licence to use, sub-licence, modify, copy, transmit, store, and back-up the Data and any Intellectual Property Rights which subsist in the Data, for the purposes of:
(a) performing Style Arcade's obligations and enforcing its rights under these Terms;
(b) enabling the Client to access and use the Software;
(c) operating the Style Arcade business in any manner considered relevant by Style Arcade;
(d) making the Data available to Multibrand Retailers or Brand Retailers and connecting the Client with Multibrand Retailers or Brand Retailers for the functionality and purpose of the Software;
(e) Style Arcade collecting aggregated anonymous data for its own purposes, on the condition that such information does not identify the Data as the Client's or otherwise includes the Client's name; and
(f) for any other purpose related to provision of Services to the Client,
such licence being irrevocable during the Term, but for the avoidance of doubt, revocable upon termination or expiry of these Terms.
7.5. The Client expressly consents to the disclosure of Data or outputs generated from the Data, to third parties for the purposes set out in clause 7.4 and acknowledges and agrees that Style Arcade's disclosure of Data to third parties in accordance with this clause 7 does not constitute a breach of clause 13 (Confidentiality).
7.6. The Client's access to the Data via the Software is contingent on payment of any relevant Fees.
7.7. If the Client would like to remove particular fields of data (as set out in clause 7.3) from access of Multibrand Retailers, the Client must provide at least five (5) days' written notice to Style Arcade, outlining the particular data fields for removal by reference to clause 7.3.
7.8. It is the Client's responsibility to maintain copies of all Data which is entered into the Software. Style Arcade uses reasonable endeavours to prevent data loss, however, as the Software operates as a cloud-based service, provided through a third party infrastructure provider, Style Arcade does not make any warranties, representations or guarantees that there will be no loss of data or that access to the Software, the Data or that the Services will be available without corruption or interruption.
7.9. The Client consents to, and grants Style Arcade a non-exclusive, perpetual, royalty-free, worldwide, licence to use the Client’s name, brand name and logo and Intellectual Property Rights which subsist in the such information, as part of Style Arcade's portfolio and marketing materials for promotional and marketing purposes, including on its website, such licence being irrevocable during the Term, but for the avoidance of doubt, revocable upon termination or expiry of these Terms.
8.1. The Client warrants and represents to Style Arcade that the Client:
(a) has legal capacity and authority to enter into these Terms;
(b) has the authority to act on behalf of any person or entity to whom the Services are provided;
(c) is authorised to use the Software and to access the data provided on such Software, including any information or Data entered into the Software by any person it has authorised to use the Services; and
(d) is responsible to determine that the Software meets the needs of its business and are suitable for the purposes for which they are used.
8.2. The Client agrees that it will not and will not permit any third-party, including without limitation any Authorised Users, to:
(a) use the Services for any purpose other than for its own lawful internal business purposes, in accordance with these Terms;
(b) alter, copy, modify or create any derivative works of the Services, the underlying source code, or the Documentation in any way, including without limitation customisation, translation or localisation;
(c) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Services or Documentation, including for timesharing;
(d) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software or in the Services;
(e) copy, distribute, link, frame, mirror or otherwise make available any portion of the Services to any third party, except where such copies or links are made available through Style Arcade;
(f) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Services or Documentation;
(g) attempt to bypass or tamper with the security, operation of the Services;
(h) attempt to access the accounts or data of any other customer or user without authority;
(i) upload or distribute any data that contains viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services;
(j) take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service or maliciously reduce or impair the reliability, accessibility or functionality of the Services or interfere with or attempt to interfere with any other user's use of the Services;
(k) engage in unlawful, obscene, harassing, intimidating, threatening, predatory or stalking conduct, or conduct that may fall under one of the aforementioned categories;
(l) harvest or collect email addresses, data or other contact information of other users from the Services by electronic or other means or use the Services to send, either directly or indirectly, any unsolicited bulk e-mail or communications, unsolicited commercial e-mail or communications or other spamming or spamming activities;
(m) use any programs, scripts, bots or other automated technology to scrape or access the Services or hijack user accounts or log-in sessions;
(n) use the Services for benchmarking purposes or otherwise to analyse its workings and features for any competitive purposes or in a manner that imposes unusual demands on the service outside of normal functions and operations; or
(o) use the Services other than for their intended purpose.
8.3. The Client agrees that to the maximum extent permitted by law, Style Arcade's warranties are limited to those set out in these Terms, and all other conditions, guarantees, or warranties whether expressed or implied by statute or otherwise are expressly excluded. Except for the foregoing, Style Arcade will provide the service “as is” without any warranty whatsoever. Style Arcade disclaims all representations and warranties with respect to the services, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, reliability, accuracy or achievement of results.
9. Service levels
9.1. Style Arcade will use commercially reasonable endeavours to meet the target service levels as set out in Schedule 5, However, on occasion the Services may be unavailable to permit maintenance, during planned downtime, of which Style Arcade shall endeavour to give advance electronic notice, or other development activity to take place, or in the event of Force Majeure.
9.2. Any dates, targets, timelines or deadlines set out in these Terms are an estimate or guideline only and are not binding on Style Arcade. To the maximum extent permitted by law, Style Arcade will not be liable for any losses or claims arising out of or in connection with any failure to provide the Services within such dates, targets, timeframes or deadlines.
10.1. When the Client requires support in relation to the Software or Services, it must provide a written request to Style Arcade detailing the nature of the support issue. Style Arcade will categorise the issue as either First Level Technical Support or Second Level Technical Support, in its reasonable discretion, in accordance with clause 10.2.
10.2. Style Arcade will use best endeavours to provide support in accordance with the table below:
10. Limitation of liability and indemnity
10.1. The Client acknowledges and agrees that Style Arcade will not be liable to the Client for any special, indirect, incidental or consequential damages, or lost data or profits, whether or not foreseeable. The parties agree that to the maximum extent permitted by law, Style Arcade's liability arising out of or in connection with these Terms and the Client's use of the Software or the Services shall not exceed the amounts paid to Style Arcade by the Client in the twelve-month period immediately prior to the event giving rise to such liability.
10.2. The Client agrees that it will be liable for and agrees to indemnify, defend and hold Style Arcade and its officers harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any dispute, action, demand or claim by a third party against Style Arcade or its employees, officers, agents or contractors in relation to any infringement of third party intellectual property rights in relation to Data;
(c) any breach of these Terms (including in particular, any breach of clauses 6 and 13);
(d) any misuse of the Software or Services; from or by the Client, its Authorised Users, its employees, contractors or agents; and
(e) any act, omission or negligence by the Client, its Authorised Users, its employees, contractors or agents,
except where such claims, liabilities, suits, actions and expenses are incurred or caused due to the gross negligence of, or breach of these Terms, by Style Arcade.
10.3. The Client agrees to co-operate with Style Arcade (at the Client's own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of the Client's use of Style Arcade's Software or Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information provided by the Client.
10.4. The parties agree that the obligations under this clause will survive termination of these Terms.
11.1. After the Initial Term, either party may terminate the Terms by providing the other with at least 30 days' written notice.
11.2. Either party may, by written notice to the other party, immediately terminate the Terms or the provision of some or all of the Services, if the other party:
(a) breaches any material provision of the Terms and the breach is not remedied within 14 days of the receipt of the written notice from the first party requiring it to remedy the breach; or capable of being remedied;
(b) breaches clause 12 (Confidentiality);
(c) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or charge’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
(d) is unable to perform a material obligation under the Terms for 30 days or more due to Force Majeure.
11.3. Style Arcade may terminate the Terms or the provision of some or all of the Services, immediately, in its sole discretion:
(a) if there is any breach of clauses 6 (Ownership of Multibrand Retailer Data), 7 (Ownership of Data), 18 (Accounts and users) and 19 (Prohibited use);
(b) if there is any breach of the warranties set out in clause 8 or if any such warranties are or become false;
(c) if it suspects that the Client is attempting to reverse-engineer the Software;
(d) if it considers that the working relationship between Style Arcade and the Client has broken down including a loss of confidence and trust; and
(e) for any other reason outside Style Arcade's control which has the effect of compromising Style Arcade's ability to provide the Client with the required Services within a reasonable timeframe.
11.4. It is the Client's responsibility to retrieve a copy of all Data from its account prior to termination of these Terms.
11.5. Termination or expiry of the Terms does not affect either party’s rights and obligations that accrued before that termination or expiry. On termination or expiry of the Terms, the Client agrees that it will immediately pay all Fees for Services provided prior to that termination or expiry and for the period after the termination date until the end of the Term.
11.6. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Terms, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
11.7. The Client agrees that upon termination of these Terms, any licence granted by Style Arcade to the Client under these Terms will be immediately revoked.
11.8. On termination or completion of the Services, Style Arcade may retain the Client's documents (including copies) as required by law or regularity requirements. The Client's express or implied agreement to the Terms constitutes the Client's authority for Style Arcade to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
12. Confidential Information
12.1. In this clause 12:
(a) Disclosing party means the party that discloses or makes available Confidential Information to the Recipient; and
(b) Recipient means a party that receives or has access to the Confidential Information of the Discloser.
12.2. Subject to clause 7 (Ownership of Data), the parties agree that they will:
(a) keep the Confidential Information confidential at all times and not disclose or permit it to be disclosed, to any third party, during the term of these Terms and any time afterwards other than as permitted under these Terms;
(b) take such steps as are reasonable to protect the Confidential Information from the misuse, interference and loss and unauthorised use or disclosure;
(c) only use the Confidential Information for the purposes of these Terms; and
(d) immediately notify the other party of any breach of confidentiality.
13.3. A party may disclose the Confidential Information:
(a) in accordance with these Terms;
(b) to any of its officers, employees, agents or advisers who have a specific need to access the Confidential Information and who have agreed to be bound by the terms of this clause 12; and
(c) where disclosure is required by law.
12.4. Each party will be responsible for any breach of this clause 12 by its officers, employees, agents or advisors.
12.5. The obligations in clause 12.2 do not apply to Confidential Information which the Recipient created independently of the Disclosing party or that is public knowledge (other than as a result of a breach of confidentiality by the Recipient).
14. Feedback and Dispute Resolution
14.1. If there is a dispute between the parties, the parties agree to adhere to the following dispute resolution procedure:
(a) The complainant must advise the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting) within 14 days of the second party receiving the complainant's notice.
(b) If the parties cannot agree how to resolve the dispute at the Initial Meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The parties must attend the mediation in good faith, to seek to resolve the dispute.
14.2. Any attempts made by the parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the parties under these Terms, by law or in equity.
14.3. Except in relation to urgent, injunctive or interlocutory proceedings, the parties agree that neither party may issue proceedings until they have acted in accordance with this clause.
15.1. Entire agreement: The Terms represents the entire agreement between the Client and Style Arcade and supersedes and extinguishes all prior agreements, representations (whether oral or written).
15.2. Independent Contractor: Style Arcade is an independent contractor and no other relationship (e.g. joint venture, agency, trust or partnership) exists between the parties.
15.3. Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
15.4. Force Majeure: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
15.5. No Assignment: The Client may not assign or transfer any rights to any other person without Style Arcade's prior written consent.
15.6. Governing law and jurisdiction: This Terms is governed by and construed in accordance with the law of New South Wales and both parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.
15.7. Severability: If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of the Terms will be binding on the parties.
15.8. Notices: Unless otherwise stated within these Terms, notices to be given to either party must be in writing and delivered by electronic mail at the email address that the Client supplied to Style Arcade.
15.9. Electronic Records and Signature: It is agreed by the parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the parties intend that the use of an Electronic Signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including Electronic Transactions Act 2000 (NSW), or any other similar laws.
15.10. Amendments: These Terms may be varied or updated by us at any time and the Client will be deemed to accept any such changes by continuing to access the Software after the changes have been made. It is the Client's obligation to ensure that it has read, understood and agreed to the most recent Terms available on the Style Arcade website. Any changes to the scope of Services provided by Style Arcade, including as set out in any Software Proposal, must be agreed in writing by both parties and may be subject to additional fees payable to Style Arcade, as specified by Style Arcade in writing on a case by case basis.
PART 2 - SUBSCRIPTION
16.1. In consideration of the Client's agreement to and compliance with these Terms and the payment of the Subscription Fees, Style Arcade grant the Client and its Authorised Users a royalty-free, worldwide, revocable, non-exclusive, non-transferable, non-assignable licence during the Term to access and use the Software solely for the Client's internal business purposes (Subscription).
16.2. Style Arcade reserves the right to make changes, modifications and enhancements to the Software and these Terms from time to time, including, but not limited to, the removal or addition of functionality and third-party integrations for which additional charges may be required for their subscription and use.
17.1. The Software interoperates with a range of third-party service features. Style Arcade does not make any warranty or representation on the suitability or availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide the feature or ceases to make that feature available on terms acceptable to Style Arcade, Style Arcade may cease to make available that feature to the Client. For the avoidance of doubt, if Style Arcade exercises the right to cease the availability of a third-party feature, the Client acknowledges and agrees that it is not entitled to any refund, discount or other compensation.
17.2. Style Arcade may provide the Client, from time to time, with Upgrades, Updates or Fixes in its sole discretion. Style Arcade will provide any Update or Fix free of charge, but Style Arcade is under no obligation to provide Updates. The Client may choose, at its discretion, to purchase any Upgrades at the rates set by Style Arcade.
18. Account and users
18.1. The Client must ensure that all usernames, access codes and corporate email accounts required to access the Services are kept secure and confidential. The Client must immediately notify Style Arcade of any unauthorised use of its corporate email accounts and the Client must take all other actions that Style Arcade reasonably deems necessary to maintain or enhance the security of its computing systems and networks and the Client's access to the Software.
18.2. Access to the Software is subject to limitations on the number of products and stores as specified in Schedule 2. The Client acknowledges that Style Arcade will charge incremental fees if these limits are exceeded. Style Arcade will make reasonable endeavours to give the Client notice of any change in the number products and stores that would exceed the limits and the estimated additional fees.
18.3. Style Arcade may access the Software and any information included in the Software, at any time, for any reason, including for the purposes of auditing your use of and access to the Software for compliance with this clause 18. If the Client is found to be in breach of this clause 18, Style Arcade may terminate these Terms in accordance with clause 11.
18.4. The Client acknowledges that it is solely responsible for ensuring the security of all corporate email accounts which have access to the Services and ensuring that passwords contain least 8 characters (ideally 10 characters), changing passwords frequently, and maintaining the confidentiality of such email accounts.
18.5. Style Arcade will not be liable for any losses arising from unauthorised access to the Software due to the Client or the Client's Authorised Users’ failure to protect their account through proper maintenance of corporate email security.
19. Prohibited Use
19.1. The Client acknowledges and agrees that it will not, and will not permit any third party (including Authorised Users) to:
(a) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
(b) attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;
(c) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(d) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under these Terms);
(e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;
(f) use the Software in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
(g) take any action that interferes, in any manner, with Style Arcade’s rights with respect to the Software;
(h) attempt to undermine the security or integrity of Style Arcade’s computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;
(i) use, or misuse, the Software in any way which may impair the functionality of the Software, or other systems used to deliver the Software or impair the ability of any other user to use the Software;
(j) attempt to gain unauthorised access to any materials other than those to which the Client have been given express permission to access or to the computer system on which the License for the Software is executed; and
(k) transmit, or input into the Software, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which the Client does not have the right to use).
20.2. The Client acknowledges that any breaches of this clause may lead to termination of these Terms in accordance with clause 11.
20. Intellectual Property
20.1. Title to, ownership rights and Intellectual Property Rights in and to any content displayed on or in the Software, or accessed through the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. For the avoidance of doubt, these Terms do not transfer any rights of any third parties or Style Arcade in such content to the Client.
21. Availability of Software
21.1. Style Arcade intends that access to the Software should be available between 9am and 5pm (time in New South Wales, Australia) with an uptime SLA of 95% per month. Outside of these hours, it is possible that the Software will be unavailable to due to maintenance or other development activity.
21.2. Where possible, Style Arcade will provide prior notice of any maintenance or development activity in advance by notice on the Style Arcade website however the Client acknowledges and agrees that at times it may not be possible to provide such notice and that Style Arcade may be required to undertake such activity, resulting in interruption to the Client's Software and Services.
22.1. Style Arcade uses reasonable endeavours to maintain security systems for the transmission of Data, including but not limited to, encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet.
22.2. Style Arcade does not guarantee the security of the services and Style Arcade will not be responsible in the event of any infiltration of its security systems. The Client acknowledges and agrees that it is responsible for the security of the Data or any other information stored on its servers, and that Style Arcade is not responsible for any other party's servers.
23.1. When the Client requires Support in relation to the Software or Services, it must provide a written request to Style Arcade detailing the nature of the support issue. Support is provided as part of the Activation process, prior to Go Live in accordance with Schedule 3. After Go Live, the issue must be categorised as a "Support" issue pursuant to clause 27 for this clause to apply and the Client requires a valid Subscription to obtain such services.
23.2. Once a Support request has been received by Style Arcade in accordance with clause 23.1, Style Arcade will categorise the issue as either First Level Technical Support or Second Level Technical Support, in its reasonable discretion, in accordance with clause 23.3.
23.3. Style Arcade will use best endeavours to provide support in accordance with the table below:
First Level Technical Support
Basic support that requires little skill or knowledge about the Services, including verifying that the network connection, computer and user’s browser is working, as well as user account administration and basic usage of the application.
For the avoidance of doubt, First Level Technical Support includes a data extract check to verify that any data integrity issue raised does not originate from the source data itself. If the data integrity issue originates from the source data, it will fall into Second Level Technical Support.
Within 2 Business Days (of a written request from the Client)
Second Level Technical Report
Any support that requires a reasonable amount of knowledge about the Services, including resolving backend issues with the Software, working with the Client to identify any data integrity or functional issues that may occur and remediating these issues.
Within 5 Business Days (of a written request from the Client)
PART 3 – RELATED SERVICES
24. Related Services
24.1. This Part 3 applies to any provision of Related Services by Style Arcade to the Client.
24.2. From time to time, the parties may agree to enter in to a Statement of Work in which Style Arcade agrees to provide Related Services to the Client in consideration for the Client paying the Service Fees set out in such Statement of Work. These Terms apply to such Statement of Work. In the event of inconsistency between these Terms and a Statement of Work, the terms set out in the Statement of Work prevails to the extent of the inconsistency.
25. Ad-hoc Related Services
25.1 From time to time, the parties may agree to enter into a Statement of Work in which Style Arcade agrees to provide Related Services to the Client in consideration for the Client paying the Service Fees set out in such Statement of Work. These Terms, including this Part 3, apply to such Statement of Work.
25.2 In the event of inconsistency between these Terms and a Statement of Work, the terms set out in the Statement of Work prevails to the extent of the inconsistency.
26.1. In order for Style Arcade to provide the Software and Services to the Client, Style Arcade agrees to provide the Related Services set out in Schedule 3, being Activation, and the Client agrees to the terms set out in Schedule 3. For the avoidance of doubt, Schedule 3 is a Statement of Work for Related Services, in accordance with clause 25.2.
26.2 When the Deliverables as set out in Schedule 3 are accepted in accordance with Schedule 3 and clause 28, the Software enters the Go Live stage, as defined in clause 2.
27. Post-Go Live Services
27.1. After Software enters the Go Live stage pursuant to clause 26.2, Post-Go Live Services provided by Style Arcade are categorised as set out in this clause 27 by Style Arcade in its sole discretion.
27.2. For clarity, Style Arcade will use the table below as a guideline to determine the category of the Post-Go Live Service. The Billing Method for each type of Post-Go Live Service will apply as set out below.
Support relating to the Deliverables, such as:
• Software bugs;
• General support or software usage queries; and
• Upgrade to existing source system
Included in monthly subscription, pursuant to clause 23.
• Change or addition to data mapping;
• Integration to new source system; and
• Investigation and resolution of source system data quality issues
Configuration work will be considered a Related Service.
Free within 30 days after Go Live. After this date, Style Arcade will provide a scope and quote for the work which will be billed to the Client as a pursuant to an SOW.
• Feature requests
Added to the Style Arcade feature request list, which prioritises based on the number of clients requesting such features. These are covered by the monthly subscription.
Alternatively, the Client may opt to pay for development costs for such feature, as quoted by Style Arcade as a Related Service pursuant to an SOW.
27. Acceptance of Services
27.1. Where the Related Services involve Deliverables, Style Arcade will provide the Deliverable to the Client in accordance with these Terms.
27.2. Once Style Arcade completes the Deliverables, Style Arcade will provide the Client with a written notice of completion.
27.3. The Client's Representative must verify the Deliverables in accordance with the Acceptance Criteria during the Review Period, as set out in the relevant Statement of Work.
27.4. If the Deliverables do not comply with the relevant Statement of Work, then the Client must provide a written notice to Style Arcade within 3 Business Days of receipt of the Deliverables setting its reasons as to why it considers the Deliverables do not meet such criteria. If such notice is not received by Style Arcade within three (3) Business Days of receipt of the Deliverables then the Client is deemed to have accepted the Deliverables.
27.5. Style Arcade will, within a reasonable time, remedy the Deliverables to ensure compliance with the relevant Statement of Work. The Client acknowledges that its sole remedy for a delay in delivery of Deliverables or Deliverables that do not comply with these Terms is to have the Deliverables resupplied by Style Arcade.
27.6. The Client's written approval of any Deliverables, materials, plans or other work created or produced by Style Arcade in the course of the provision of the Related Services, or any cost estimate, will constitute as authority on behalf of the Client to Style Arcade to purchase, make contracts and otherwise to do any other act or thing which Style Arcade considers reasonable to do in order to carry out its obligations under these Terms.
27.7. Style Arcade will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client's instructions and Style Arcade will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.
28. Acceptance of Related Services
28.1. Where the Related Services involve Deliverables, Style Arcade will provide the Deliverables to the Client in accordance with these Terms.
28.2. The Client's Representative must verify that the Deliverables comply with the Acceptance Criteria during the Review Period, in accordance with any Acceptance Process or otherwise as set out in the relevant Statement of Work (if any).
28.3. From time to time, Style Arcade may require the Client to sign off on a Related Services Sign Off Form (Form) in order to confirm completion of the Related Services. The Client must verify that the Related Services (including any Deliverables provided as part of the Related Services and the Software) complies with the items set out in the Form.
28.4. If the Deliverables do not comply with the relevant Statement of Work, Acceptance Criteria, or with the items set out in the Form (as applicable), then the Client must provide a written notice to Style Arcade within the Review Period or if no Review Period is provided, within, 3 Business Days of receipt of the Deliverables or Form (whichever is earlier), setting out its reasons as to why it considers that the Deliverable non-compliance (Defect Notice). If such notice is not received by Style Arcade within the Review Period, then the Client is deemed to have accepted the Deliverables.
28.5. Style Arcade will, within a reasonable time after receiving a Defect Notice, remedy the Deliverables to ensure compliance. The Client acknowledges that its sole remedy for a delay in delivery of Deliverables or Deliverables that do not comply with these Terms is to have the Deliverables resupplied by Style Arcade. If the Client does not provide either acceptance in accordance with the Acceptance Process, or a Defect Notice within three (3) Business Days of receiving such remedied Deliverables, then the Client is deemed to have accepted the Deliverables.
28.6. The Client's written approval of any Deliverables, materials, plans or other work created or produced by Style Arcade in the course of the provision of the Related Services, or any cost estimate, will constitute as authority on behalf of the Client to Style Arcade to purchase, make contracts and otherwise to do any other act or thing which Style Arcade considers reasonable to do in order to carry out its obligations under these Terms.
28.7. Style Arcade will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client's instructions and Style Arcade will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.
29. Fees for Related Services
29.1. In consideration of Style Arcade providing the Related Services, the Client must pay the Fees as set out in the relevant Statement of Work (if any) or as set out in any written quote provided by Style Arcade to the Client for such Related Services, and in accordance with clause 4 of these Terms.
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