Terms of Service

Version Date: 5 March 2024
1. Binding Agreement
1.1 These Terms of Service, together with the Order and any schedules, attachments and documents incorporated into the Terms of Service and Order, collectively form the agreement by and between Hava Pty Limited (ACN 605 752 092) of Level 3/179 Queen Street, Melbourne, Victoria, Australia 3000 (Hava) and the Customer (collectively, Agreement) and govern the Customer’s use of the Software and the provision by Hava of the Services.
1.2 A person purporting to accept these Terms of Service represents that he or she has the legal power to do so. If a person accepts these Terms on behalf of an organization, then:
(a) “the Customer” will refer to that organization; and
(b) that person:
(i) represent and warrants that he or she has the authority to bind the organization; and
(ii) understands and agrees that the organization is bound by and responsible for ensuring that each of its Users comply with these Terms of Service.
1.3 This Agreement is binding on the parties and deemed to be validly executed on the earlier to occur of the following:
(a) the Customer receives a copy of these Terms of Service and the other applicable Agreement documents, either in hard copy, electronically or by being provided with a hyperlink to them, and the Customer then:
(i) clicks or taps on a button indicating its acceptance (usually during the registration or onboarding process); or
(ii) proceeds to download or log into or otherwise use the Software and/or the Services; or
(b) both parties have signed, either electronically or in hard copy, a document referencing these Terms of Service (including an Order).
1.4 This Agreement prevails over, and replaces, any non-disclosure or confidentiality agreement, purchase order terms or other Customer issued terms and conditions that were entered into prior to the Commencement Date.
1.5 Capitalised terms used in this Agreement have the meaning given to them in clause 22. Rules of interpretation for this Agreement are contained in clause 21.14.
1.6 If any provision in this Agreement conflicts with or is inconsistent with any other provision of the Agreement, then the following order of precedence will apply (with those documents listed earlier prevailing over a document listed later):
(a) the Order;
(b) these Terms of Service;
(c) the schedules to these Terms of Service; and
(d) any document expressly incorporated by reference into any of the above.
2. Term
2.1 The Agreement commences on the date specified in the Order or, if no commencement date is specified in the Order, the date on which Hava and Customer are deemed to have executed the Agreement in accordance with clause 1.3 (Commencement Date) and continues for the Term, unless terminated earlier in accordance with this Agreement.
2.2 Either party may elect not to renew this Agreement beyond the Initial Term or, if applicable, each Further Term by providing written notice to the other party at least 30 days prior to the expiration of the Initial Term or such Further Term, in which case the Agreement will end on the last day of the Initial Term or Further Term (as the case may be).   Where the Initial Term or Further Term (as the case may be) is longer than one month, at least 45 days prior to the expiration of the Initial Term or such Further Term, Hava will give Customer notice of that upcoming expiration.
2.3 If a non-renewal notice has not been issued under clause 2.2 in respect of an Initial Term then, following the end of the Initial Term (unless the parties enter into a new Order) this Agreement will not expire and, subject to Customer paying Hava all applicable Fees, will continue for a Further Term. If a non-renewal notice has not been issued under clause 2.2 in respect of a Further Term then, following the end of that Further Term (unless the parties enter into a new Order) this Agreement will not expire and, subject to Customer paying Hava all applicable Fees, will continue for an additional Further Term.
3. Hava's obligations
3.1 During the Term, Hava will:
(a) provide the Customer with access to, or a download of, and use of the Software;
(b) provide the Customer with the Services,
as set out in this Agreement and in accordance with the Documentation.
3.2 The Customer acknowledges and agrees that the Documentation may specify minimum technical requirements and third party service integrations that are required in order for the Customer to access or download and use the Software.  Hava takes no responsibility for any third party products or services that the Customer uses in connection with the Software.




4. Changes to Software and Agreement
4.1 Subject to clause 4.2:
(a) the Customer acknowledges that Software will evolve over time and Hava reserves the right, in its absolute discretion, to change how the Software operates and its functionality (by releasing updates, patches, error corrections, modifications, enhancements and new versions of the Software (Updates)) from time to time without giving the Customer prior notice; and 
(b) Hava may on 30 days written notice to Customer amend this Agreement.
4.2 If any change:
(a) under clause 4.1(a) significantly removes or degrades the functionality or performance of the Software; or
(c) under clause 4.1(b) adversely affects the Customer’s rights or obligations or reduces Hava’ obligations or liability,
then:
(d) the Customer may notify Hava objecting to the change; and
(e) unless Hava agrees in writing to not make the change (or the parties agree some other resolution in writing) in response to Customer's objection within 14 days of being notified of Customer's objection, then:
(i) Customer may elect to terminate the Agreement on 30 days’ prior written notice; and
(ii) if Customer terminates pursuant to this clause, Hava will provide Customer with a pro-rata refund of any pre-paid Fees that relate to the period following the effective date of termination.
5. Services
Implementation Services
5.1 If stated in the Order, Hava will provide the Implementation Services to the Customer.
Support Services
5.2 Hava will provide the Support Services to the Customer in accordance with the Base Support Schedule or Order, as applicable.
5.3 The Customer acknowledges and agrees that Hava is not obliged to provide any support, advice, or training, in relation to the Software or Customer Environment, or in relation to the Customer's use of the Software, except for the provision of Support Services.  Any additional support, advice, assistance or training may, if agreed by Hava, be provided as additional services in accordance with clauses 5.4 to 5.6 below.
Additional Services
5.4 At any time during the Term, Customer may request in writing that Hava provide a quote for the supply of further services not covered by the Implementation Services or Support Services.
5.5 Hava will consider any request for quote under clause 5.4 and will respond to the Customer within a reasonable time of receiving the request. 
5.6 Hava is not obliged to provide (and Customer is not obliged to purchase) any additional services unless and until Hava and Customer have agreed in writing to the scope, prices and any other relevant terms for the supply of such additional services.  Unless otherwise agreed by the parties, any further services or out of scope work performed by Hava will be provided on a time and materials basis at the rates set out in the Order (or if no rates are specified in the Order, at Hava's then current time and material rates notified in writing to Customer).
6. Right to access or download and use the Software
6.1 In consideration of the payment of the Fees, Hava grants to the Customer a non-exclusive, non-transferable, revocable, limited right for the Customer to either (as specified in the Order):
(a) access and use the Software via a hosted environment that is provided and managed by Hava (SaaS); or
(b) download, install and use the Software in the Customer Environment (Customer Hosted),
for the internal business purposes of the Customer and for no other purpose, subject to the terms and conditions (including any usage restrictions or parameters) set out in this Agreement and the Order.
6.2 The Customer agrees to access and use the Software only in accordance with the terms and conditions of this Agreement, the Documentation and the Order.
6.3 Where the Software is provided via SaaS, the details for the SaaS are as set out in the Order and the Documentation.
6.4 Where the Software is Customer Hosted, the details of the Customer Environment are set out in the Order and Hava is not responsible for the Customer Environment or any issues caused by using a self-hosted environments not specified in the Documentation, and the Support Services do not include assistance with any such issues.
6.5 The Customer acknowledges and agrees that:
(a) except as set out in this Agreement, the Customer does not have any right or entitlement to access or use the Software, or permit others to do so;
(c) subject to the Customer's rights under clause 4.2, the features and functionality of the Software may be modified by Hava from time to time; and
(d) unless otherwise agreed in writing by Hava, the Customer must use the most recent Update (for the relevant SaaS or Customer Hosted deployment type) of the Software, and implement any such Update within 30 days of receiving notice of such Update.
7. Requirements for using the Software
7.1 The Customer must:
(a) only use the Software in accordance with the normal operating procedures and instructions as notified by Hava (including the Documentation);
(b) ensure that it only permits Users to use and access the Software for the internal business purposes of the Customer and for no other purpose;
(c) pay any associated Fees, and otherwise be responsible and liable to Hava for, any use of the Software using the access credentials provided to the Customer or any Users:
(d) except as contemplated by clause 7.1(b), not authorise any other party to exercise its entitlement to access, download, install or use the Software, or otherwise sub-license any of its rights under this Agreement;
(e) ensure that all Users of the Software are aware of, understand, accept and comply with the terms of this Agreement and the Documentation.  Any breach of the Documentation or this Agreement by any Users of the Software will be deemed to be a breach of this Agreement by the Customer;
(f) immediately notify Hava if the Customer's actual or intended use of the Software exceeds the scope of any usage restrictions or parameters set out in this Agreement or the Documentation;
(g) comply with any security requirements, procedures or directions which may be notified to Customer in writing by Hava from time to time in respect of the access and use of the Software;
(h) not access or use the Software after the Term has ended, and must ensure that its Users do the same; and
(i) provide Hava and its Personnel with access to such premises, systems, personnel, information and resources as may reasonably be requested by Hava to enable it to perform the Services and its obligations under this Agreement.  Hava will comply with any reasonable policies and procedures notified by Customer to Hava in writing when Hava is accessing Customer premises and systems.
7.2 The Customer must ensure that the Software is not used for:
(a) any unlawful activities; or
(b) publishing any materials (or storing any content) that is unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.
7.3 The Customer is solely responsible for its use of the Software, and for supervising, managing and controlling use of the Software by Users.  Hava may, but is not obliged to, monitor the use of the Software by Users to verify the Customer's compliance with this Agreement.
7.4 Subject to clause 7.5, the Customer must not (and must ensure that its Users do not):
(a) use, access or copy the Software except to the extent necessary to use the Software strictly in accordance with this Agreement;
(b) distribute, disassemble, reverse-engineer, decompile, or recreate in any way the Software or the source code of the Software;
(c) allow any person other than the User to use a User’s login credentials to access or use the Software;
(d) adapt, modify or translate the Software or make derivative works of any kind of or utilising the Software or combine it with any other software (other than software prior approved by Hava in writing);
(e) use or copy any aspects of the Software for any purposes related to the development of other software or platforms with similar attributes, functions, features, or qualities, to those of the Software;
(f) sell, rent, lease, license, sublicense, or resell the Software or, other than to the extent specifically authorised by Hava in this Agreement or otherwise by Hava in writing, use the Software as a service bureau, or for the benefit of any third party, whether on a paid or unpaid basis;
(g) other than to the extent specifically authorised by Hava in this Agreement or otherwise by Hava in writing, copy, export or extract data or other information from the Software;
(h) use the Software to transmit or process any content or data, or conduct any transactions, that are unlawful or infringe any third party rights;
(i) introduce any Harmful Code into the Software or Hava's computer systems or networks;
(j) interfere with or circumvent the security and integrity of the Software or Hava's computer systems or networks;
(k) conduct penetration or security testing of the Software or any of the SaaS infrastructure except to the extent explicitly authorised by Hava in writing; or
(l) allow or authorise anyone to do any of the foregoing. 
7.5 The restrictions set out in clause 7.4 do not apply to the extent prohibited by applicable law, or to the extent that applicable laws do not permit Hava to impose these restrictions on the Customer.  To the extent permitted by law, the Customer must notify Hava in writing that the Customer intends to not comply with the restrictions set out in clause 7.4 due to such laws.
7.6 Hava reserves the right to restrict or suspend the Customer's (or one or more User's) access to part or all of the Software:
(a) if the Customer (or any of its Users) are in breach of this Agreement and Customer fails to rectify the breach within 14 days of receiving notice of the breach;
(b) where it is permitted to do so under the Documentation; or
(c) if continued use may result in material harm to the Software or its users,
and Hava will promptly allow the Customer (or the suspended User(s)) to regain access once Hava is satisfied (acting reasonably) that the issue giving rise to the suspension has been rectified or addressed.
8. Compliance with Laws and Data Protection Laws
8.1 Each party agrees to comply with all Laws applicable to it in connection with the performance of its obligations and exercise of its rights under this Agreement.
8.2 Hava will comply with its privacy policy available at https://www.hava.io/privacy in relation to any Personal Data the Customer discloses or makes available to Hava in connection with the Agreement.
8.3 Each party must:
(a) comply with applicable Data Protection Laws in relation to any Personal Data it collects, holds or has access to in connection with this Agreement;
(b) only use, store, disclose and otherwise processes Personal Data it obtains from the other party in accordance with the Privacy Agreement and as otherwise required to perform its obligations under the Agreement; and
(c) notify the other party if it becomes aware of any loss of, or unauthorised disclosure, modification or access to, Personal Data in its possession or control in connection with this Agreement (security breach), and cooperate with the other party in relation to:
(i) investigating and remediating the security breach; and
(ii) making any notifications required under Data Protection Laws to impacted individuals or government agencies regarding the security breach.
9. Customer Data and Customer Environment
9.1 Where the Software is provided as a SaaS:
(a) subject to clause 9.1(b), Customer acknowledges that it is responsible for all Customer Data stored using the Software, and that Hava will process the Customer Data through the Software on the Customer's behalf;
(d) Hava will implement reasonable security measures to protect the Customer Data from unauthorised access, disclosure or loss while it is stored in the Software, including the security measures and controls set out in the Privacy Agreement; and 
(e) Customer acknowledges and agrees that security measures are not absolute, and Hava does not guarantee that the Customer Data will not be subject to unauthorised access, disclosure or loss.  Hava is not responsible for any unauthorised access, disclosure of loss of the Customer Data that:
(i) arises due to a breach of this Agreement, or any negligent act or omission, of the Customer, its Personnel or any Users; or
(ii) was not (or would not have been) prevented by Hava implementing reasonable security measures in accordance with clause 9.1(b).
9.2 Where the Software is Customer Hosted:
(a) Customer must ensure that the Customer Environment complies with any requirements for a self hosted environment as set out in the Documentation and Order;
(b) Customer is solely responsible for the costs of licensing, implementing and maintaining the Customer Environment, and for the security of the Customer Environment and any Customer Data;
(c) Customer must provide Hava with access to the Customer Environment to the extent required for Hava and its Personnel to perform any Implementation Services and to audit and ensure the Customer's use of the Software complies with this Agreement, including that it has removed and deleted the Software when the Agreement terminates or expires; and
(d) Hava is not responsible for any Software unavailability or performance issues or faults to the extent caused by the Customer Environment or any Cloud Provider.
9.3 The Customer must ensure that all Customer Data provided to Hava or used in connection with the Software:
(a) does not infringe (and can be used by Hava as contemplated by this Agreement without infringing) any Laws, including Data Protection Laws, or the IP Rights (or any other rights) of any person; and
(b) is not misleading, deceptive, unlawful, fraudulent or defamatory.
9.4 The Customer grants Hava a non-exclusive, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, transmit, display and store the Customer Data to the extent:
(a) required for Hava to provide the Software as a SaaS;
(c) necessary for Hava to perform its obligations, and exercise its rights, under this Agreement; and
(d) required by Law.
9.5 The Customer grants Hava an irrevocable, perpetual, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, adapt, display, store, exploit, and commercialise:
(a) any ideas, suggestions or improvements to the Software or the Services that are communicated by or on behalf of the Customer to Hava;
(b) information relating to Customer's usage of the Software (usage information) for Hava's internal business purposes;
(c) the usage information for Hava's external business purposes, including via the provision of reports and services to third parties that are based on or utilise the usage information, provided that when using the usage information for such purpose, Hava must:
(i) ensure it is aggregated or otherwise anonymised in a way that ensures that the Customer (or any individuals) cannot be reasonably identified; and
(ii) any materials utilising or reproducing any usage information that is provided to a third party must not reference or identify the Customer or any Users without their prior written consent,
and
(d) the usage information on a non-anonymised basis for the purpose of allowing Hava and its partners to identify products and services which may be relevant to Customer.
9.6 The Customer acknowledges and agrees that is solely responsible for:
(a) doing all things necessary (including by providing any notices and obtaining all consents that are required under applicable Laws) to ensure that:
(i) the access and use of Personal Data provided by, or on behalf of the Customer, or its Users, via the Software; and
(ii) the storage and processing of the Customer Data through the Software generally,
does not infringe any Laws or third party rights; and
(e) maintaining its own back-ups of any Customer Data that is stored and processed by the Software, whether provided via SaaS or Customer Hosted.
10. Intellectual Property
10.1 Nothing in this Agreement:
(a) transfers ownership in any IP Rights of any party; or
(a) grants any rights to use any IP Rights of any party, except as expressly stated in this Agreement.
10.2 Hava and its licensors own all IP Rights in, and associated with, the Software and Documentation, including all modifications and improvements made to it in connection with this Agreement or otherwise.
10.3 As between Hava and the Customer, ownership of the Customer Data remains with the Customer.
10.4 The Customer agrees:
(a) not to do any act or thing which might invalidate or be detrimental to the IP Rights of Hava and its licensors in the Software;
(b) not to assert or represent that it has any proprietary, intellectual or moral right, title or interest in the Software, or register or attempt to register any such rights; and
(c) not to use (or allow any third party to use) the Software (or the Documentation or any other materials or information provided by Hava) in connection with the development of any software or technology platform that competes (or could reasonably be used to compete) with the Software.
10.5 The Customer agrees that Hava may publicly identify the Customer as a user of the Software.  If requested by Hava, the Customer will provide a brief profile of itself and its use of the Software which may be used by Hava for promotional purposes. Hava will comply with any brand guidelines issued by the Customer in connection with the use of any of the Customer’s trademarks.
11. Confidentiality
11.1 Each party (receiving party) must keep confidential, and not disclose, any Confidential Information of the other party (disclosing party) except:
(a) as permitted under this Agreement;
(b) where the receiving party has obtained the prior written permission of the disclosing party;
(c) to the receiving party's Affiliates and Personnel, professional advisers, auditors, and insurers who have a need to know the Confidential Information and agree to keep it confidential on terms consistent with this Agreement; or
(d) where the receiving party is compelled to do so by Law, provided that where possible it gives the disclosing party written notice prior to disclosure.
11.2 Each party must only use Confidential Information of the other party to the extent required to exercise its rights and perform its obligations under this Agreement.
11.3 Except as permitted under clause 10.5, each party must not make any public statement or issue any press release concerning or relating to this Agreement or its relationship with the other party without the prior written consent of the other party.
11.4 On termination or expiry of this Agreement, on request from the disclosing party, the receiving party must return or destroy all copies of the Confidential Information of the disclosing party in its power, possession or control.  The foregoing does not require a party to return or destroy any materials, information or data for which it has an ongoing perpetual licence to use,which is required to be retained to comply with applicable Laws or which is stored as part of its usual archival or back-up procedures.
12. Records and audit rights
12.1 The Customer must:
(a) maintain current, complete and proper records relating to the performance of its obligations under this Agreement; and
(b) provide Hava access, on reasonable notice, to the Customer's premises, the Customer Environment and records relating to the Software (whether in electronic or paper form) as Hava reasonably requires in order to enable Hava to review and audit the Fees charged to the Customer.
12.2 Without limiting clause 12.1, the Customer agrees to submit to, and provide all reasonable co-operation in relation to, any audit of the Customer's compliance with this Agreement and usage of the Software that is requested by Hava.
12.3 If any audit establishes that the Customer has been undercharged or overcharged, the Customer must pay (or Hava must reimburse) the sum undercharged or overcharged (as applicable) within 14 days together.  Where the audit establishes that the Customer has been undercharged, the Customer must also pay Hava the reasonable costs of the audit incurred by Hava.
13. Fees
13.1 Hava may invoice the Fees, and the Customer must pay the Fees, in accordance with and subject to the terms of the Order.  If the Order does not specify when any of the Fees pay be invoiced, then Hava may invoice the relevant Fee monthly in arrears.
13.2 During the Initial Term, the Fees may only be amended in accordance with the terms of the Order. Following the end of the Initial Term:
(a) Hava may update the Fees and rates on 30 days written notice to Customer; and
(b) Customer may elect to terminate this Agreement on 30 days written notice to Hava if it does not agree to any changes to the Fees following the Initial Term.
13.3 Unless otherwise agreed by the parties or specified in the Order, the Customer must pay any invoices issued by Hava for the Fees within 14 days of the date of the invoice.
13.4 If the Customer fails to pay any properly rendered invoice by the date required under clause 13.3 then, without limiting any other rights or remedies that Hava may have in relation to the Customer's payment default, the Customer must pay interest at the Default Interest Rate calculated daily in relation to the amount of the unpaid invoice, and Hava will be entitled to set-off part or all of the amount of the invoice against any amount payable by Hava to the Customer under this Agreement or any other agreement between the parties.
14. Taxes
14.1 Unless otherwise expressly stated, all amounts payable under this Agreement are exclusive of GST. The Customer must pay the GST in addition to such amounts.
14.2 The Customer is responsible for payment of all Taxes that arise as a result of or in connection with this Agreement. 
14.3 If Customer is required by Law to make any deduction or withholding on account of any Taxes from payments due under this Agreement, the Customer must increase the payment due so that, after deducting or withholding such Tax, Hava receives an amount equal to the amount it would have received had no deduction or withholding been made.
15. Warranties
15.1 Each party represents and warrants to each other party that:
(a) the execution of this Agreement has been properly authorised by it;
(a) it has full corporate power, and has taken all necessary action, to execute and perform its obligations under this Agreement;
(b) it has the capacity and all necessary licences, permits and consents to perform this Agreement; and
(c) its unconditional execution and delivery of, and compliance with its obligations under, this Agreement, do not contravene:
(i) any Law to which it or any of its property is subject or any order or directive from a government body binding on it or any of its property; or
(ii) its constituent documents, any agreement or instrument to which it is a party or any obligation to any other person.
15.2 Hava warrants that:
(a) during the Term, the Software will operate in substantial conformance with the Documentation; and
(b) it will perform the Services with due care and skill.
15.3 To the extent permitted by Law, Customer's sole and exclusive remedy for a breach of the warranty in:
(a) clause 15.2(a) is to receive Support Services from Hava to rectify the breach of warranty. If Hava is unable to rectify the breach of warranty within a reasonable time after using reasonable commercial efforts to do, Customer may issue a breach notice under clause 18 (termination), and if the breach is not rectified by the end of the period specified in the breach notice, the Agreement may be terminated by Customer and, Hava's sole liability on termination pursuant to this clause is to provide Customer with a pro-rata refund of Fees paid for the Software (that relates to the period that the Software did not comply with the warranty and was not able to be used by Customer). The foregoing does not limit any other rights and remedies of Customer under clause 17.1; and
(a) clause 15.2(b) is to have the Services supplied again.
15.4 The warranty in clause 15.2(a) will not apply:
(a) if the Software is not used by the Customer in accordance with the Documentation and this Agreement;
(b) if the non-conformity is caused by an act or omission of Customer or its Personnel or Users, by any third party product or service not provided by Hava, or by any matter that is outside of Hava's reasonable control (including Force Majeure Events);
(c) where the Software is Customer Hosted, the issue is caused by the Customer Environment;
(d) if the Customer has used a Customer Environment that does not match the conditions for a Hosted Environment set out in the Documentation.
15.5 Without limiting clause 17.1, Customer acknowledges that the Software may not be error free, or that Customer's use of the Software will be uninterrupted, or that the Software will meet the Customer's requirements.
15.6 The Customer warrants that it has obtained all authorisations and consents required by Law (including all Data Protection Laws) and from any third parties in relation to the Customer Data that are required for Hava to exercise its rights, and perform its obligations, under this Agreement.
16. Indemnities
16.1 The Customer indemnifies Hava, its Affiliates and each of their officers, employees and agents (those indemnified) from and against any claim, action, demand, loss, damage, expense, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with any claim or allegation against those indemnified (including a government body or regulator) that the receipt or use of the Customer Data  infringes third party rights (including IP Rights, moral rights, confidentiality obligations or privacy) or any Laws, provided that:
(a) the Hava notifies Customer promptly in writing of any such claim;
(b) Hava is entitled, but not obliged, at its election to have sole control (at the Customer’s cost) of the defence and/or settlement of the claim. If Hava does not exercise the election to have sole control of the defence and/or settlement of the claim, the Customer will have sole control (at Customer's cost) of the defence and/or settlement of the claim; and
(c) where Hava exercises the election in 16.1(b), Customer will fully co-operate and provide all reasonable assistance to Hava in the defence or settlement at Customer's cost. Where Hava does not exercise the election in 16.1(b), Hava will fully co-operate and provide all reasonable assistance to Customer in the defence or settlement at Customer's cost.
16.2 Customer will have no obligation to indemnify those indemnified under clause 16.1 to the extent that a claim is caused by Hava's use of the Customer Data in breach of the terms of this Agreement.
16.3 Hava indemnifies the Customer, its Affiliates and each of their officers, employees and agents (those indemnified) for any damages awarded or settlement agreed as a result of any claim against the Customer by a third party against those indemnified that the Software or Services infringe a third party's IP Rights, provided that:
(a) the Customer notifies Hava promptly in writing of any such claim;
(b) Hava is given sole control (at Hava's cost) of the defence and/or settlement of the claim; and
(c) Customer fully co-operates and provides all reasonable assistance to Hava in the defence or settlement at Hava's cost.
16.4 Hava will have no obligation to indemnify under clause 16.3 to the extent that a claim is based on:
(a) the combination, operation or use of the Software with other data, products, software, processes, materials or services not provided or authorised by Hava;
(b) any unauthorised use of the Software or Services by Customer or a User in in breach of this Agreement;
(c) modification of the Software by a party other than Hava or its Personnel;
(d) Customer Data; or
(e) Customer not using the most recent Update for the Software after being notified by Hava that use of such Update would ensure the Software is non-infringing.
16.5 Any indemnity in this Agreement is a continuing obligation separate and independent from any other obligation and survives the expiry or termination of this Agreement. It is not necessary for those indemnified to incur an expense or make a payment before enforcing a right of indemnity conferred by this Agreement. A party holds the benefit of any indemnity on trust for any of those indemnified that are not party to this Agreement, and may enforce and recover under such indemnity for and on behalf of any of those indemnified.
17. Exclusions and limitations of liability
17.1 Customer may have statutory rights and warranties which cannot lawfully be excluded. Nothing in this Agreement has the effect of excluding, restricting or modifying such statutory rights and warranties. 
17.2 All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this Agreement are excluded other than:
(a) those set out in the terms of this Agreement; and
(b) any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by agreement (Non-Excludable Terms).
17.3 To the maximum extent permitted by law (but subject to clause 17.1), if Hava is liable for a breach of a Non-Excludable Term, where it is permissible to limit liability for such Non-Excludable Term, Hava's liability is limited (at its option, acting reasonably) to:
(a) in relation to goods, replacing or repairing the goods, or paying the costs of replacing or repairing the goods; or
(c) in relation to services, the re-supply of services or the payment of the cost of having the services resupplied.
17.4 Except for liability to which clause 17.1 and clause 17.3 applies, and subject to clause 17.5, each party:
(a) excludes any and all liability to the other party for Indirect Loss; and
(b) limits its total aggregate liability under or in connection with this Agreement (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) to the greater of $1,000 and the Fees paid by the Customer during the 12 month period preceding the event giving rise to the claim.
17.5 The exclusions and limitations of liability in clause 17.4, do not apply to:
(a) the Customer's liability to pay the Fees;
(c) the liability of a party for injury to or death of any person, or for loss of or damage to any tangible property, caused by a party's negligent act or omission;
(d) infringement of the other party's IP Rights;
(e) liability for breach of clause 11 (Confidentiality);
(f) liability of a party under an indemnity; and
(g) liability of a party for fraud, wilful misconduct or fraudulent misrepresentation, or for any matter which it would be illegal for a party to exclude or limit.
17.6 A party's liability in connection with this Agreement (including under an indemnity) will be reduced proportionately to the extent the other party or its Personnel caused or contributed to the liability.
18. Termination
18.1 Hava may terminate this Agreement with immediate effect by notice in writing to the Customer where:
(a) the Customer ceases business, or threatens to do so;
(b) the Customer breaches a term of this Agreement which is capable of remedy, but does not remedy the breach within 30 days of notice in writing issued by Hava, identifying the breach and requesting remedy;
(c) the Customer breaches a term of this Agreement and that breach is incapable of remedy; or
(d) an Insolvency Event occurs in respect of the Customer, or is reasonably likely to occur.
18.2 The Customer may terminate this Agreement with immediate effect by notice in writing to Hava where:
(a) Hava ceases business, or threatens to do so;
(b) Hava breaches a term of this Agreement which is capable of remedy but does not remedy the breach within 30 days of notice in writing issued by the Customer, identifying the breach and requesting remedy; or
(c) Hava breaches a material term of this Agreement and that breach is incapable of remedy; or
(d) an Insolvency Event occurs in respect of Hava, or is reasonably likely to occur.
19. Consequences of termination
19.1 Immediately upon expiration or termination of this Agreement for any reason, the licence to the Software ends and Hava may use remote or other means to limit or disable the Customer's access to, and use of, the Software.
19.2 On expiration or termination of this Agreement for any reason:
(a) the Customer must cease using the Software, and permanently deleting any copies and, if requested by Hava, certify in writing to Hava it has done so; and
(b) the Customer pay to Hava all outstanding amounts owing to Hava within 7 days.
19.3 After 2 days following the expiry or termination of this Agreement, Hava is under no obligation to retain any Customer Data and the Customer acknowledges and agrees that the Customer Data will be deleted by Hava without further notice to the Customer.
19.4 Nothing in this Agreement, including clause 19.30, requires Hava to delete Customer Data that it is required by Law to retain, provided that Hava must comply with the terms of this Agreement in relation to any such retained Customer Data.
19.5 Any termination of this Agreement will not affect any accrued rights or liabilities of any party, nor will it affect any provision of this Agreement which is expressly or by implication intended to continue in force after termination. 
20. Force Majeure
20.1 A party will be relieved from performance of its obligations under this Agreement to the extent that it is  unable to or impeded from performing those obligations due to a Force Majeure Event.
20.2 If a Force Majeure Event persists for a period of more than 60 days, either party may terminate this Agreement (without liability) by giving written notice to the other party.
20.3 For the avoidance of doubt, this clause 20 does not apply to the Customer's obligations under this Agreement to pay amounts that are due and payable to Hava.
21. General
21.1 Survival
Clauses 7.1(h), 7.4, 9.2(c), 9.5, 10, 11, 16, 1, 17, 19 and this clause 21, and any other provisions of this Agreement which, by their nature, are continuing, survive the termination or expiration of this Agreement.
21.2 Relationship
The parties are independent contractors and nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise.
21.3 Entire agreement
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.
21.4 Severability
If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
21.5 Assignment and subcontracting
(a) A party must not assign or novate its rights or obligations under the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). . Notwithstanding the foregoing, a party may assign the Agreement to its Affiliate or to any third party purchaser of the assets or business of the party (purchaser), provided that such Affiliate or purchaser (as applicable) agrees in writing in favour of the other party to be bound by the terms of the Agreement.
(b) Hava may subcontract any of its obligations under this Agreement to any person, but will remain responsible for the sub-contracted obligations.
21.6 Waiver
No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
21.7 Rights cumulative
Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.
21.8 Variation
Except as otherwise provided in clause 4, no variation of this Agreement is effective unless made in writing and signed by each party.
21.9 Costs, expenses and duties
Each party must pay its own costs and expenses in relation to the negotiation, preparation, execution, variation and performance of this Agreement.
21.10 Governing law
This Agreement is governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
21.11 Disputes
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity of this Agreement, will be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The arbitration will be administered by the Australian Centre for International Commercial Arbitration (ACICA). The appointing authority will be ACICA. The number of arbitrators will be one. The place of arbitration will be Melbourne, Australia. The language to be used in the arbitral proceedings will be English.
21.12 Counterparts
This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.
21.13 Electronic signatures
The parties consent to execution via electronic signature. The use of an electronic signature by a party is conclusive of the signing party's intention to be bound by this Agreement as if physical signing had occurred.  Where this Agreement is electronically signed by a party, that party warrants and agrees that the electronic signature has been used to identify the person signing and to indicate that the party intends to be bound by the electronic signature. In this clause, "electronic signature" means a digital signature or a visual representation of a person’s handwritten signature or mark which is placed on an electronic copy of this Agreement by electronic means, and “electronically signed" has a corresponding meaning.
21.14 Notices
Any notices under this Agreement must be given by email in writing. The Customer’s email address is set out in the Order. Hava’s email address is: support@hava.io . A party may change their email address by notice to the other party.  A notice is deemed to be given and received on:
(a) the day it was sent, if delivered by 5pm on a Business Day; or
(a) the next Business Day, in any other case.
21.15 Interpretation
In this Agreement the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(e) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it; and
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a party includes its successors, permitted assigns and permitted persons substituted by novation;
(iii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(iv) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes email transmissions;
(v) a right includes a benefit, remedy, discretion or power;
(vi) time is to local time in Melbourne, Australia; and
(vii) a monetary amount is in US dollars.
22. Definitions
In this document:
Affiliate means, for a party, any other person that controls, is controlled by, or under common control with, the party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of the other person through at least 50% of the shares, voting rights, participation, or economic interest in this person.
Agreement is defined in clause 1.1.
Base Support Schedule means the schedule attached to these Terms of Service outlining the base level support provided by Hava.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia.
Cloud Service Provider means a third party provider of cloud infrastructure and hosting services, including Amazon Web Services and Microsoft.
Commencement Date has the meaning given in clause 2.1.
Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is:
(a) in the public domain other than through a breach of confidence;
(b) independently developed by the receiving party; or
(c) is received by the receiving party from a third party who is not bound by obligations of confidence in relation to that information.
Customer Data means all data and materials that are uploaded by the Customer to the SaaS Software or otherwise provided by or on behalf of Customer to Hava in connection with this Agreement.
Customer means the customer specified in the Order.
Customer Environment means the infrastructure used by the Customer to self-host the Software, which may be cloud infrastructure provided by Cloud Service Provider.
Customer Hosted has the meaning given in clause 6.1(b).
Data Protection Laws means any applicable privacy and data protection laws, regulations, and rules, and includes those data protection laws specified in the Privacy Agreement.
Default Interest Rate means the lower of: (a) 2% above the official cash rate determined by the Reserve Bank of Australia as at the date interest under this Agreement started accruing; and (b) the maximum rate of interest permitted by Law in Victoria, Australia.
Defect means a failure of the Software to materially comply with the requirements of the Documentation.
Documentation means Hava's standard user instructions, manuals, policies, specifications, acceptable use terms and other documentation for the Software, and for the Customer Environment, as updated from time to time, including the documents specified or referenced in the Order.
Fees means the amounts payable by the Customer under this Agreement for the Software and Services, as set out in the Order and subsequently varied in accordance with this Agreement.
Force Majeure means an event or circumstance beyond the reasonable control of Hava and whose effects could not have been avoided by steps that might reasonably be expected to be taken by Hava acting as a reasonable and prudent commercial including (but not limited to) an act of God; pandemic; fire; lightning; explosions; flood; subsidence; insurrection or civil disorder or military operations; sabotage; telecommunications infrastructure or network failures; any hack, cyber attack, electronic intrusion, or other unauthorized access or manipulation of any computer, electronic data, or electronic system, expropriation, prohibition, intervention, confiscation, embargo or restraint of property by or under the order of any government or government authority; strikes; lock-outs or other industrial disputes of any kind.
Further Term means the period of 12 months (or another period specified in the Order) from the expiry of the Initial Term or, if applicable, the expiry of each Further Term.
GST means goods and services taxes, value added tax or similar indirect taxes.
Harmful Code means any computer code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data including viruses, worms, spyware, adware, keyloggers, trojans, and any new types of programmed threats that may be classified.
Implementation Fee means the fee described in the Order, which is payable for the Implementation Services.
Implementation Services means the services and activities to implement the Software, as described in the Order.
Indirect Loss means:
(a) any loss of profit, revenue, anticipated savings, data, goodwill or business, or any interruption to business; and
(b) any special, incidental, indirect or consequential loss or damage,
arising out of or in connection with the Agreement, and whether arising in contract, tort (including negligence) or under any statute or under any other cause of action.
Initial Term means the period of 12 months from the Commencement Date or (another minimum committed subscription period for Software specified in the Order). 
Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.
IP Rights means all intellectual property rights throughout the world including existing and future copyright, trade marks, designs, patents, semiconductor and circuit layout rights and domain names, rights in inventions, trade secrets and confidential information, and any rights to apply for and obtain registration of any of the foregoing rights, whether created before or after the date of this Agreement.
Law means any applicable statute, regulation, bylaw, ordinance, policy or subordinate legislation in force from time to time in any part of the world and includes the common law and equity as applicable from time to time, and any mandatory standards or mandatory industry codes of conduct.
Order means the hard copy or electronic application form, order or proposal (as specified by Hava from time to time) executed by the parties that outlines the party details and other commercial details (such as whether the Software is provided as SaaS or Customer Hosted and the Initial Term) and which references or attaches these Terms of Service.
Personal Data is given the meaning under the relevant applicable Data Protection Laws relating to this term or any similar term (such as “personal information” or “personally identifiable information”) used in the applicable laws, or where no such laws apply, means any information that by itself or when combined with other information (such as telephone number, e-mail address, precise real-time GPS location, and government-issued identification number) can be used by Hava to identify a specific natural person.
Personnel means employees, directors, agents, contractors and subcontractors, including employees and contractors (who are individuals) of subcontractors.    
SaaS has the meaning given in clause 6.1(a).
Software means the software specified in the Order, and includes any Updates to such software.
Services mean the services provided by or on behalf of Hava to the Customer under this Agreement (apart from access to the Software), being the Implementation Services and Support Services and the additional services (if any) provided in accordance with clause 5.6.
Support Services means the support services to be supplied to Customer by Hava under this Agreement, being the support services specified in the Base Support Schedule or such other support services specified in the Order if the Customer is obtaining premium support.
Taxes means a tax, levy, duty, charge, deduction or withholding, however described, imposed by Laws or government agencies, together with any related interest, penalty, fine or other charge, other than GST or income tax.
Terms of Service means this document, including its schedules.
Term means the Initial Term and any Further Term for which this Agreement continues under clause 2.3, if applicable.
User means Personnel of Customer and its Affiliates who Customer authorises to use and access the Software.
Updates has the meaning given in clause 4.1(a).


Base Support Schedule
1. Definitions
In this schedule:
Help Desk means an email help desk facility, as further described in section 4 below.
Support Hours means from 3am to 8pm (Melbourne Australia time) on a Business Day.
Support Representative means Customer's nominated support representative specified in the Order or a replacement notified in writing by the Customer to Hava.
2. Scope of Support
Hava will provide Support Services consisting of:
● the operation of a Help Desk; and
● the provision of Updates.
The Customer acknowledges and agrees that Hava is not:
● responsible for resolving faults caused by software, hardware or other components that are outside of its networks or beyond its reasonable control (or which are due to scheduled outages); or
● required to respond to queries relating to the Customer Environment.
3. Reporting Defects
The Support Representative (and no other Customer Personnel) may report any Defect of which the Customer becomes aware to Hava by contacting the Help Desk.
The Help Desk can be contacted as follows: support@hava.io
4. Help Desk
Hava will, during the Term, make a Help Desk available to the Customer during Support Hours to enable the Customer to:
● report Defects to Hava; and
● seek answers to technical and user questions relating to the Software.
Hava will use reasonable endeavours to:
● promptly respond to support requests from the Support Representative that are made to the Help Desk; and
● promptly answer technical and User questions relating to the Software submitted by the Support Representative to the Help Desk.