SKUvantage

Master Terms of Service

These Master Terms of Service, together with each Order and SOW and any exhibits incorporated therein (collectively, this “Agreement”), govern the use and provision of the Solutions and any associated Services.

1.    DEFINITIONS

1.1.    “ACL” means Schedule 2 of the Competition and Consumer Act 2010 (Cth), and the Australian Consumer Law Regulations being as set out in Parts 6 and 7 of the Competition and Consumer Regulations 2010.

1.2.    “Affiliates” means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such Person.

1.3.    “Aggregated Data” means technical data and other data created, received, or processed by or from the Solutions; provided that such data is derived or aggregated in deidentified form. 

1.4.    “Australian Privacy Act” means the Privacy Act (1988) (Cth) as amended, and includes the APPs, and the Notifiable Data Breaches Scheme.

1.5.    “Authorized User” means each of Customer’s employees, agents, and independent contractors who are provided access to the Solutions in accordance with, and subject to, this Agreement.

1.6.    “Confidential Information” means all written or oral information, disclosed by one party (the “disclosing party”) to the other (the “receiving party”), related to the business, products, solutions, services, or operations of the disclosing party, or a third party, that has been identified as confidential or that by the nature of the information ought reasonably to be treated as confidential, including the terms of this Agreement.

1.7.    “CPI” means the index measuring the rate of price changes in Australia with reference to “All Groups” and the weighted average of eight capital cities, as determined and revised from time to time by the Australian Bureau of Statistics

1.8.    “Customer” means the party identified as the “Customer” in the Order or SOW.

1.9.    “Customer Content” means all Customer data or information made available by Customer to Skuvantage in connection with Customer’s use of the Solutions, but excluding, for clarify, any Skuvantage IP, Aggregated Data or Usage Data and Third-Party Content.

1.10.    “Documentation” means text and/or graphical documentation, whether in electronic or printed format, made available by Skuvantage that describes the features and operation of the Solutions. 

1.11.    “Effective Date” means the first date of the Term specified in Customer’s Order or, if such Order was submitted online, the date Customer submits the online Order. 

1.12.    “Feedback” means suggestions and/or other feedback provided by Customer regarding any Solution. For the avoidance of doubt, “Feedback” excludes Customer’s Confidential Information. 

1.13.    “GST” means Australian goods and services tax, and shall have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.14.    “IPR” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.15.    “Licensed Entitlements” means the limits, volume, business scope, or other measurement or conditions of permitted access and use of the Solutions set forth in the applicable Order.

1.16.    “No-Cost Offering” means a no-cost subscription to all or a portion of the Solutions.

1.17.    “Order” means the order document signed by an authorized representative of each party, or submitted online by Customer when such option is available, identifying the Solutions to be made available, the fees to be paid, and referencing these Terms of Service. 

1.18.    “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

1.19.    “Personal Information” means any information about a natural person who is identifiable by referencing an identifier such as name, identification number, contact details, email address or location data, which information is processed by or on behalf of Skuvantage in connection with the Solutions, including user information.

1.20.    “Privacy Laws” means any applicable laws, statutes, and regulations governing the collection, use, disclosure, or storage of Personal Information, including without limitation the Australian Privacy Act and the Spam Act.

1.21.    “Skuvantage” means SKUvantage Pty Ltd  (ACN 158 804 114).

1.22.    “Skuvantage IP” means (i) the Solutions, (ii) the underlying software provided in conjunction with the Solutions, (iii) any information, data, data models, content or materials developed or controlled by Skuvantage and made available through or in connection with the Solutions [or any Services, (iv) any algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Solutions or any Services, (v) the Documentation, (vi) all improvements, modifications or enhancements to, or derivative works of, the foregoing subparts (i) to (v) (regardless of inventorship or authorship), and (vii) all IPR in and to any of the foregoing subparts (i) to (vi).

1.23.    “Services” means professional services provided by Skuvantage, or on Skuvantage’s behalf, to Customer as identified in an Order or SOW. 

1.24.    “Solutions” means Skuvantage’s proprietary, cloud hosted solutions, API’s and related support services identified in an Order, together with the Services. 

1.25.    “Spam Act” means the Australian Spam Act 2003 (Cth).

1.26.    “SOW” means a statement of work signed by an authorized representative of each party referencing these Terms of Service (or attached to an Order) and identifying the Solutions and/or Services to be made available and fees to be paid. 

1.27.    “Tax Invoice” means an invoice which is tax compliant for GST in Australia.

1.28.    “Third-Party Content” means any information, data, data models, content or materials developed or controlled by third-parties and made available to the Customer through or in connection with the Solutions. Third-Party Content is not Customer Content. 

1.29.    “Usage Data” means information stored in log files, including internet protocol addresses, type of browser, Internet Service Provider, date/time stamp, clicked pages endpoint usage, response times and status codes, referring/exit pages services or applications, authentication or access patterns, error logs .

2.    SOLUTIONS

2.1.    Access and Use. Subject to the restrictions contained in this Agreement (including the Licensed Entitlements), Skuvantage hereby grants, and Customer hereby accepts, a non-exclusive, non-transferable (subject to Section ‎10.2) and non-sublicensable right during the Term for its Authorized Users to access and use the Solutions solely for Customer’s own internal business purposes; provided, however, that if and as expressly permitted in an Order, Customer may make the Solutions available to its Affiliates, provided that Customer ensures that such Affiliates’ use of the Solutions is in compliance with this Agreement. Customer will be responsible for all acts and omissions (including any breach of this Agreement) by any Affiliate or Authorized User. 

2.2.    Restrictions. Customer shall not: (a) access or use the Solutions (or permit any Authorized User or third party to do so), except as expressly permitted herein; (b) reverse engineer or create derivative works based on the Solutions; (c) copy, frame, mirror, sell, resell, rent, lease, or otherwise commercially exploit any part or content of the Solutions; (d) use the Solutions or Documentation for benchmarking or competitive analysis with respect to competitive products or services, or to build a competitive product or service; (e) upload, post, store, distribute, transmit, sell, promote, or provide any Customer Content, information, data, or other material in an illegal manner or in a manner that violates or infringes the IPR or other rights of any third party; (f) access or search the Solutions (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Solution features provided by Skuvantage for use expressly for such purposes; (g) interfere with, or disrupt the integrity or performance of, the Solutions, or any data or content contained therein or transmitted thereby; or (h) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Solutions or any other user of the Solutions (i) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Solutions or used in connection with the Solutions.

2.3.    Reservation of Rights; Acknowledgement of Ownership. Except for the limited rights granted to Customer herein, Skuvantage reserves and, as between the parties, will solely own, the Skuvantage IP and all right, title, and interest in and to the Skuvantage IP. 

2.4.    Third-Party Services. Customer may choose to use or procure third-party products or services in connection with the Solutions, including any third party implementation, customization or training services (collectively, “Third-Party Services”). Customer’s receipt or use of any Third-Party Services (and the third-party’s use of Customer Content) is subject to a separate agreement between Customer and the provider of the Third-Party Services. If Customer enables or uses Third-Party Services with the Solutions, you acknowledge and permit Skuvantage to  allow the provider of the Third-Party Services to access and use such Customer Content and Customer Personal Information as is required for the establishment and interoperation of the Third-Party Services with the Solutions. This may include transmitting, transferring, migrating, modifying or deleting Customer Content or Customer Personal Information, or storing Customer Content or Customer Personal Information on systems belonging to the provider of the Third-Party Services or their vendors. Skuvantage is not responsible for any access to or use of Customer Content by providers of Third-Party Services, or for the security or privacy practices of any provider of Third-Party Services. Skuvantage disclaims all liability and responsibility for any Third-Party Services (whether support, availability, security or otherwise) or for the acts or omissions of any provider of Third-Party Services or their vendors. 

2.5.    No-Cost Offering. To the extent that Skuvantage makes available to Customer one or more of its No-Cost Offerings, then Customer hereby acknowledges and agrees that: (a) the No-Cost Offering may not contain all of the features and functions made generally available by Skuvantage in connection with a purchased subscription for the Solutions; (b) the No-Cost Offering is made available to Customer by Skuvantage on an “AS IS” basis without any representations or warranties whatsoever; and (c) Skuvantage may modify or terminate Customer’s right to use No-Cost Offerings at any time and for any reason in its sole discretion, without liability to Customer. Sections ‎7.1, ‎7.3, 7.4 and ‎8 of this Agreement do not apply to No-Cost Offerings.

2.6.    Continuous Development. Skuvantage continually develops new features and functionality of the Solutions. If Skuvantage adds additional functionality to a particular Solution, Skuvantage may: (a) provide or make available to Customer such features at no additional charge; or (b) condition the implementation of such modifications on Customer’s payment of additional fees; provided that, during the Term, Customer may continue to use the version of the Solution that Skuvantage makes generally available (without such features) without paying additional fees.

2.7.    Feedback. Customer hereby grants to Skuvantage a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into the Solutions or Skuvantage’s other products and services. Skuvantage acknowledges that any Feedback is provided “as is” without any representations or warranties.


3.    CUSTOMER CONTENT AND OBLIGATIONS

3.1.    Ownership and Reservation of Rights. Except for the limited license granted to Skuvantage in Section ‎3.2, Customer reserves all right, title, and interest in and to the Customer Content. Customer will execute a document confirming its rights to Customer Content upon request from SKUvantage. 

3.2.    License in Customer Content. Customer grants to Skuvantage a non-exclusive, royalty-free, sub-licensable, worldwide license during the Term, to use, host, reproduce, display, distribute, perform, modify the Customer Content solely for the purpose of hosting, operating, and providing the Solutions, and Skuvantage’s other related products, services and technologies and facilitating third-party products or services.

3.3.    Access to Customer Content. The Customer is responsible for determinations as to recipients of Customer Content communicated and directed to SKUvantage in the provision of Solutions and Services. The Customer is responsible for advising SKUvantage as to any restriction with respect to the publication or distribution of Customer Content. SKUvantage is under no obligation to make Customer Content available to any third party.  Notwithstanding any data quality checks, validations, verifications, or suggestions provided by the Solutions, Customer will review Customer Content and Third Party Content for accuracy, completeness, and compliance before exporting or publishing Customer Content or Third Party Content through the Solutions and, as between the parties, Customer will be solely responsible for deciding whether to export or publish Customer Content or Third Party Content through the Solutions and any consequences of such decisions.     

4.    AGGREGATED DATA, SECURITY AND PRIVACY

4.1.    Aggregated Data and Usage. Customer acknowledges and agrees that: (a) Skuvantage may generate and obtain Aggregated Data and Usage Data in connection with the use of the Solutions; and (b) Skuvantage may use the Aggregated Data and Usage Data to develop, analyze, improve, support, and operate the Solutions and Skuvantage’s other related products, services and technologies. 

4.2.    Security and Privacy. Skuvantage maintains commercially reasonable technical and organizational measures designed: (a) to secure its systems from unauthorized disclosure, access or alteration, and (b) to protect against unlawful destruction or accidental loss. Customer acknowledges and agrees it is responsible for adopting reasonable redundancy, safeguards and other measures (including back up processes and maintenance of copies of all Content) to limit the impact of such errors, omissions, delays and losses which may occur while using the Solutions.

4.3.    Transfer of Customer Content outside Australia. Customer Content or information otherwise collected by SKUvantage may be stored in servers located in countries outside of Australia. 

5.    FEES; PAYMENT
 
5.1.    Fees. Customer will pay Skuvantage the fees set forth in each Order or SOW in accordance with this Agreement. If Customer’s use and access of the Solutions exceeds its Licensed Entitlements, in addition to Skuvantage’s other remedies, Skuvantage reserves the right to charge Customer for overages at Skuvantage’s then current rates. Unless otherwise specified on an Order, all payments shall be made in Australian dollars. 

5.2.    Payment Terms. Except as otherwise expressly provided in this Agreement, all fees will be billed annually in advance and are nonrefundable. All invoices issued by Skuvantage will be due and payable thirty (30) days after invoice date. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law. Customer will reimburse Skuvantage for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

5.3.    Taxes. The fees charged by Skuvantage do not include any taxes, levies, duties, or similar governmental assessments, including any GST or other value-added, sales, use or withholding taxes accessible by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay any applicable direct or indirect Taxes associated with its purchases hereunder, including any GST payable in respect of any taxable supply made under this agreement in addition to the amount payable (exclusive of GST) for the taxable supply.  Such taxes are payable at the same time as the amount payable for the taxable supply to which it relates and they will be itemized on the invoice. If Customer has an obligation to withhold any amounts under any applicable law or tax regime (other than Australian income tax law), Customer will gross up the payments so that Skuvantage receives the amount actually quoted and invoiced. If Skuvantage has a legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides Skuvantage with a valid tax exemption certificate authorized by the appropriate taxing authority. 

6.    CONFIDENTIAL INFORMATION

6.1.    Use and Disclosure. Each receiving party agrees that it will not disclose the Confidential Information of the disclosing party to anyone except its employees, contractors, and third-party service providers and advisors who have a need to know and are bound by confidentiality obligations no less restrictive than this Agreement, unless authorized by the disclosing party (e.g., through the Solution interface). Confidential Information shall not include information that is: (a) generally known to the public without breach of this Agreement; (b) obtained by the receiving party from another source not known to have an obligation of confidentiality to the disclosing party; (c) at the time of disclosure to the receiving party, already in the possession of the receiving party free of any confidentiality obligation; (d) independently developed by the receiving party without reference to any Confidential Information of the disclosing party; or (e) required by applicable law or regulation to be disclosed, provided that the receiving party shall give the disclosing party prompt notice of any such requested disclosure and shall comply with any valid protective order that is obtained by such other party. 

7.    WARRANTIES; DISCLAIMERS; LIMITATIONS ON LIABILITY

7.1.    Skuvantage Representations. Skuvantage represents and warrants to Customer that during the Term: (a) Skuvantage will comply with all applicable laws and regulations, including Privacy Laws, in the performance of its obligations under this Agreement; (b) the Solutions will be provided or made available in accordance with the applicable Order, including any service levels and support identified therein; and (c) the Services will be performed in a professional and workmanlike manner. In addition, Skuvantage will employ industry-standard safeguards designed to prevent the introduction into the Solutions of viruses, worms, Trojan horses, and other malicious code.

7.2.    Customer Representations. Customer represents and warrants that Customer (a) either owns fully and outright or otherwise possesses and has obtained and provided all rights, approvals, licenses, consents, and permissions as are necessary to perform its obligations hereunder, to exercise its rights hereunder, and to grant the licenses granted by it under this Agreement; and (b) will comply with all applicable laws and regulations, including Privacy Laws, in the performance of its obligations under this Agreement. 

7.3.    General Representations. Each party represents and warrants that: (a) the execution and performance of this Agreement, including use of the Solutions, will not conflict with or violate any provision of any law having applicability to such party; and (b) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

7.4.    ACL. The Customer may have rights to implied guarantees and warranties under ACL, including that the Solutions are of acceptable quality, rights for defective Solutions or Services to be re-performed, and rights to compensation for damage and loss. Nothing in this Agreement removes Customer’s rights as a consumer under the ACL. Customer agrees that SKUvantage’s liability for Solutions and Services provided to consumers is governed solely by the ACL and this Agreement.  SKUvantage excludes all conditions and warranties implied by custom, law or statute except for your rights under ACL. If Customer is a consumer as defined in the ACL, the following applies to you: We (Skuvantage) guarantee that the services we supply to you (Customer) are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.

7.5.    General Warranty Disclaimer. Except as expressly provided in Sections ‎7.1, 7.3 and ‎7.4, the Solutions are provided “as is” without any warranty of any kind, and Skuvantage and its Affiliates and licensors disclaim any and all warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose. Except as expressly set forth herein, Customer acknowledges that Skuvantage does not warrant that the Solutions will be provided or made available in an uninterrupted or error free fashion at all times, or that the Solutions will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, or that the Solutions will be accurate, complete, sufficient, or adequate to meet Customer’s and its Authorized Users’ requirements or needs., All Third-Party Content provided by or made available to the Customer via the Solutions is provided on an “as is” basis without warranty or endorsement of any kind by Skuvantage. Skuvantage does not guarantee that the Third-Party Content is accurate, up-to-date or free of errors. 

7.6.    Disclaimer of Indirect Damages. Except with respect to each party’s express indemnification obligations and payment obligations in this Agreement, in no event will either party be liable for any indirect, incidental, consequential, special, punitive, or exemplary damage, or any loss of income, data, profits, revenue or business interruption, or the cost of cover or substitute services, arising out of or in connection with this Agreement, whether or not such party has been advised of the possibility thereof. 

7.7.    Limitation on Liability. Except with respect to Customer’s indemnification obligations hereunder, each party’s maximum aggregate liability hereunder will not exceed the total amount of fees paid or payable to Skuvantage under the Order or SOW under which the liability arose during the twelve (12) month period prior to the first date on which such liability arose (the “Cap”); provided, however, that with respect to (a) Skuvantage’s breach of its data security or privacy obligations in Section ‎4.2 that results in unauthorized access to Customer Content or Customer’s Confidential Information and (b) Skuvantage’s express indemnification obligations hereunder with respect to infringement or misappropriation of third-party IPR, Skuvantage’s maximum aggregate liability hereunder will not exceed five (5) times the Cap. 

7.8.    Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 7 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

8.    INDEMNIFICATION

8.1.    Skuvantage Indemnity. Subject to Section 8.2, Skuvantage will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging Customer’s use of the Solutions infringes or misappropriates such third party’s IPR, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Skuvantage (including reasonable attorneys’ fees) result from such Claim. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of any third-party IPR in connection with the Solutions.

8.2.    Exclusions. Skuvantage’s obligations under Section 8.1 will not apply if the underlying third-party Claim arises, in whole or in part, from: (a) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (b) any Customer Content; (c) any Third-Party Content (d) Customer’s failure to use any enhancements, modifications, or updates to the Solutions that have been provided by Skuvantage; (e) modifications to the Solutions by anyone other than Skuvantage; or (f) combinations of the Solutions with software, data or materials not provided by Skuvantage.

8.3.    Customer Indemnity. Customer will defend Skuvantage against any Claims arising from: (a) Customer Content, including without limitation any Claim, (i) that the Customer Content infringes, misappropriates or otherwise violates any third party’s IPR or (ii) that the use, provision, transmission, display or storage of Customer Content violates any applicable law, rule or regulation; (b) relating to Customer's use, provision, transmission, display or storage of  Third-Party Content (c) relating any of Customer’s products or services; (d) relating to use or misuse of the Solutions by Customer or its Authorized Users in a matter not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the usage restrictions in Section 2.2 (e) relating to Customer’s integration activities transmitting data from its own servers, software and website and other system components to the Solutions; and in each case Customer will indemnify and hold harmless Skuvantage against any damages and costs awarded or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim. 

8.4.    Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, except where such failure to notify does not materially prejudice the indemnifying party; (b) reasonably cooperating in the defense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party; provided that that the indemnifying party may not settle any claim in a manner that admits liability or otherwise prejudices the indemnified party, without the indemnified party’s prior written consent.

8.5.    Infringement. If the Solutions are, or in Skuvantage’s opinion are likely to become, the subject of any infringement-related claim, then Skuvantage may, at its sole option and expense: (a) procure for Customer the right to continue using the Solutions; or (b) replace or modify the infringing technology or material so that the Solutions become non-infringing and remain materially functionally equivalent. If Skuvantage determines that neither alternative is commercially practicable, Skuvantage may terminate this Agreement or the relevant Order and provide Customer a refund for any pre-paid, but unused fees.

9.    TERM AND TERMINATION

9.1.    Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the initial term specified in the Order (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party has provided notice to the other party of non-renewal at least sixty (60) days in advance of the end of the then-current Term. Skuvantage reserves the right to change the fees or applicable charges and to institute new fees and charges upon renewal of the Term, provided that in the case of an automatic renewal of the Term, Skuvantage will provide at least (90) days’ prior notice to Customer of such new fees and charges (which may be sent by email or through the Solutions interface). Notwithstanding the foregoing, on and from each anniversary of the commencement date of the Order, the Fees will be increased by CPI.

9.2.    Termination. Either party may terminate this Agreement upon written notice to the other party in the event the other party commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice.

9.3.    Suspension of the Solutions. At any time during the Term, Skuvantage may, immediately upon notice to Customer, suspend access to the Solutions for: (a) a threat to the technical security or integrity of the Solutions; (b) any amount due under this Agreement is not received by Skuvantage within thirty (30) days after it was due; (c) inappropriate Customer Content or content which infringes the rights of a third party or (d) Customer’s or any Authorized User’s breach of Section ‎2.2 of these Terms of Service.

9.4.    Termination upon Bankruptcy or Insolvency. Either party may terminate this Agreement immediately upon written notice to the other party, in the event the other party: (a) becomes insolvent or unable to pay its debts when due; (b) files a petition in bankruptcy, reorganization, or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) discontinues its business; or (d) has a receiver appointed or if there is an assignment for the benefit of its creditors.

9.5.    Return/Deletion of Customer Content. Upon termination or expiration of this Agreement, Skuvantage will maintain Customer Content for a period of thirty (30) days and during such period, Customer may access and download Customer Content via standard export mechanisms, including through the Solutions interface; upon request, Skuvantage will deliver such Customer Content to Customer. After such period, Skuvantage will delete such Customer Content. 

9.6.    Effect of Termination. Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Skuvantage before such effective date of termination or expiration will be immediately due and payable, and (b) all licenses and access rights granted will immediately cease to exist. Sections ‎1 (Definitions), ‎2.2 (Restrictions), 2.3 (Reservation of Rights; Acknowledgement of Ownership), 2.7 (Feedback), 3.1 (Ownership and Reservation of Rights) and 4 through ‎10 will survive the termination or expiration of this Agreement for any reason. 

10.    GENERAL

10.1.    Export Compliance. Customer represents, warrants, and covenants that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list or the Australian Government Consolidated List, and it agrees to comply fully with all relevant export control and sanctions laws and regulations, including those of the United States and Australia (“Export Laws”), to ensure that neither the Solutions, any Customer Content, nor any technical data related thereto is: (a) used, exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. 

10.2.    Assignment. Neither party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other party, and any such assignment absent such consent shall be deemed null and void. Notwithstanding the foregoing, either party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.

10.3.    Publicity. Skuvantage shall have the right to identify Customer as a customer of Skuvantage, and to use and to display Customer's name and logo, in Skuvantage’s general marketing and reporting materials (such use to be in accordance with Customer’s brand guidelines, if Customer provides such guidelines to Skuvantage in writing). Customer shall have the right to identify Skuvantage as the provider of the Solutions, and to use Skuvantage’s name and logo in connection with Customer’s use of the Solutions, in accordance with Skuvantage’s brand guidelines.

10.4.    Notices. All notices, consents, and approvals under this Agreement must be delivered via email or in writing by courier, by fax, or by certified or registered mail, to the other party at the address set forth on the Order (and for notices to Skuvantage, with a copy to legal@salsify.com and info@skuvantage.com) and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.

10.5.    Governing Law; Venue. This Agreement will be governed by the laws of New South Wales, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy, or claim arising out of or relating to this Agreement, will be made exclusively in a federal or state court located in Sydney, New South Wales and both parties submit to the jurisdiction and venue of such court.

10.6.    Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.7.    Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

10.8.    Relationship.  Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party. The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.

10.9.    No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.10.    Construction. The parties intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

10.11.    Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terror, denial of service or other malicious attacks, telecommunications failure or degradation, material changes in law, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

10.12.    Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Any instruments, including purchase orders, work orders, acknowledgments, and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede, or modify, the terms of this Agreement and if any term of any Instrument purports to add to, supersede, or modify any term of this Agreement, such term of the Instrument shall be void and without effect. This Agreement may be amended only by a written document signed by both parties. In the event of any inconsistency between the following documents, the order of precedence shall be: (a) the applicable Order or SOW; and (b) this Agreement.