Welcome to KEEP. Please read these Terms of Use carefully. All contracts that we may offer from time to time for the provision of KEEP shall be governed by these Terms of Use.
By joining KEEP and becoming a Partner, you acknowledge that you have read, understood and you agree to the Terms of Use.
1.1 Except to the extent expressly provided otherwise, in these Terms of Use:
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 16.
3.1 The Provider shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Partner and provide to the Partner login details for that Account.
3.2 The Provider hereby grants to the Partner a non-exclusive license to access KEEP by means of a Supported Web Browser for the purposes of the Partner in accordance with the Documentation during the Term.
3.3 The license granted by the Provider to the Partner under Clause 3.2 is subject to the following limitations:
3.4 Except to the extent expressly permitted in these Terms of Use or required by law on a non-excludable basis, the license granted by the Provider to the Partner under Clause 3.2 is subject to the following prohibitions:
3.5The Partner shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to KEEP.
3.6 The Partner must not use KEEP in any way that causes, or may cause, damage to KEEP or Platform or impairment of the availability or accessibility of KEEP.
3.7 The Partner must not use KEEP:
3.10 For the avoidance of doubt, the Partner has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.1 Unless the parties have agreed otherwise in writing, the Partner must provide to the Provider, or procure for the Provider, such:
5.1 Nothing in these Terms of Use shall assign or transfer any Intellectual Property Rights from the Provider to the Partner, or from the Partner to the Provider.
6.1 The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Agreement will be given to a Partner Representative, and the Partner:
6.2 The Partner shall ensure that all instructions given by the Partner in relation to the matters contemplated in the Agreement will be given by a Partner Representative to the Provider, and the Provider:
7.1 The Provider shall pay the Partner Fees to the Partner in accordance with these Terms of Use.
7.2 All amounts stated in or in relation to these Terms of Use are, unless otherwise stated, are exclusive of any taxes due and payable by the Partner.
7.3 The Provider may elect to vary any element of the Payment Fees by giving to the Partner not less than thirty (30) days' written notice of the variation after the expiry of the Minimum Term.
7.4 The Provider shall pay the Partner Fees annually on the anniversary of the Effective Date.
8.1 The Provider must:
8.2 The Partner must:
8.3 Notwithstanding Clauses 8.1 and 8.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.
8.4 No obligations are imposed by this Clause 8 with respect to a party's Confidential Information if that Confidential Information: (a) is known to the other party before disclosure under these Terms of Use and is not subject to any other obligation of confidentiality; (b) is or becomes publicly known through no act of the other party; or (c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
8.5 The restrictions in this Clause 8 do not apply if any Confidential Information is requested by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
8.6 Upon termination of the Agreement, each party must immediately cease to access the other party's Confidential Information.
8.7 Following termination of the Agreement, and within 5 Business Days following the date of termination of the Agreement, the relevant party must destroy or return to the other party (at the other party's option) all media containing the other party's Confidential Information and must irrevocably delete the other party's Confidential Information from its computer systems.
8.8 The provisions of this Clause 8 shall remain in force indefinitely following the termination of the Agreement.
9.1 Neither party may make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
9.2 Nothing in this Clause 9 shall be construed as limiting the obligations of the parties under Clause 8.
10.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Partner Personal Data.
10.2 The Partner warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under the Agreement.
10.3 The Provider shall only process the Partner Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 10.
10.4 The Provider shall only process the Partner Personal Data on the documented instructions of the Partner.
10.5 Notwithstanding any other provision of these Terms of Use, the Provider may process the Partner Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Partner of the legal requirement before processing, unless that law prohibits such information on grounds of public interest.
10.6 The Provider shall ensure that persons authorised to process the Partner Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.7 The Provider and the Partner shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Partner Personal Data.
10.8 The Provider must not engage any third party to process the Partner Personal Data without authorization from the Partner.
10.9 The Provider shall assist the Partner in ensuring compliance with the obligations relating to the security of processing of personal data.
10.10 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms of Use, then the parties shall use their best endeavours promptly to agree such variations to these Terms of Use as may be necessary to remedy such non-compliance.
11.1 The Provider warrants to the Partner that:
11.2 The Provider warrants to the Partner that:
11.3 The Provider warrants to the Partner that KEEP, when used by the Partner in accordance with these Terms of Use, will not breach any laws, statutes or regulations applicable under any applicable international law.
11.4 The Provider warrants to the Partner that KEEP, when used by the Partner in accordance with these Terms of Use, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
11.5 If the Provider reasonably determines, or any third party alleges, that the use of KEEP by the Partner in accordance with these Terms of Use infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
11.6 The Partner warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Use.
11.7 All warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms of Use. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
12.1 The Partner acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the provisions of these Terms of Use, the Provider gives no warranty or representation that KEEP will be wholly free from defects, errors and bugs.
12.2 The Partner acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the provisions of these Terms of Use, the Provider gives no warranty or representation that KEEP will be entirely secure.
12.3 The Partner acknowledges that KEEP is designed to be compatible only with the software and those systems specified as compatible in the KEEP Specification; and the Provider does not warrant or represent that KEEP will be compatible with any other software or systems.
12.4 The Partner acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms of Use or in relation to KEEP; and, except to the extent expressly provided otherwise in these Terms of Use, the Provider does not warrant or represent that KEEP or the use of KEEP by the Partner will not give rise to any legal liability on the part of the Partner or any other person.
13.1 The Provider shall indemnify and shall keep indemnified the Partner against any liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) arising directly or indirectly from any breach by the Provider of these Terms of Use.
13.2 The Partner must:
13.3 The Partner shall indemnify and shall keep indemnified the Provider against liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) arising directly or indirectly from any breach by the Partner of these Terms of Use.
13.4 The Provider must:
13.5 The indemnity protection set out in this Clause 13 shall be subject to the limitations and exclusions of liability set out in the Agreement.
14.1 Nothing in these Terms of Use will:
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in these Terms of Use:
14.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
14.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
14.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.
14.6 Neither party shall be liable to the other party in respect of any loss of use or production.
14.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
14.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software;
14.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
15.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16.1 Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination after the end of the Minimum Term.
16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
16.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
17.1 Upon the termination of the Agreement, all of the provisions of these Terms of Use shall cease to have effect, save that the following provisions of these Terms of Use shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 8, 9, 10.1, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25 and 26.
17.2 Except to the extent that these Terms of Use expressly provides otherwise, the termination of the Agreement shall not affect the rights of either party.
18.1 Any notice given under these Terms of Use must be in writing, whether or not described as "written notice" in these Terms of Use.
18.2 Any notice given by the Partner to the Provider under these Terms of Use must be:
18.3 Any notice given by the Provider to the Partner under these Terms of Use must be:
18.4 The addressee and contact details set out in the Agreement may be updated online from time to time by a party or by giving written notice of the update to the other party in accordance with this Clause 18.
18.5 A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.
18.6 A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:
19.1 The Partner must not assign, transfer or otherwise deal with the Partner's contractual rights and/or obligations under these Terms of Use without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Partner may assign the entirety of its rights and obligations under these Terms of Use to any Affiliate of the Partner or to any successor to all or a substantial part of the business of the Partner from time to time.
20.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
20.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
21.1 If a provision of these Terms of Use is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
21.2 If any unlawful and/or unenforceable provision of these Terms of Use would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
22.1 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.
22.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
23.1 The Agreement may not be varied except by means of a written document agreed by both parties.
24.1 Your Details and the main body of these Terms of Use shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
24.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
24.3 The provisions of this Clause 24 are subject to Clause 14.1.
25.1 These Terms of Use shall be governed by and construed in accordance with Australian law.
25.2 Any disputes relating to the Agreement shall be subject to the courts of Australia.
26.1 In these Terms of Use, a reference to a statute or statutory provision includes a reference to:
26.2 The clause headings do not affect the interpretation of these Terms of Use.
26.3 References in these Terms of Use to "calendar months" are to the twelve (12) named periods (January, February and so on) into which a year is divided.
26.4 In these Terms of Use, general words shall not be given a restrictive interpretation by being preceded or followed by words indicating a particular class of acts, matters or things.