CLIENT LICENCE AND SERVICES AGREEMENT
This Agreement sets forth the terms and conditions between Peakhour.io Pty Ltd (ABN 76 619 930 826) (Peakhour) and its customers or users (Client) in relation to the Client's use of Peakhour's software and Services. By agreeing to use Peakhour's Services you agree to be bound by this Agreement.
This Agreement comprises:
- In the Agreement, the following terms have the stated meaning:
Acceptable Use Policymeans our Acceptable Use Policy.Client Datameans all data, content, configurations and credentials of, or related to, the Client's Website, including
(a) all assets, information and materials on the Client's Website, including images, CSS and content; and
(b) the Client's public and private encryption keys.Client's Websitemeans the website specified by the Client when ordering the Service.Confidential Informationmeans the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.Documentationmeans all documentation provided by Peakhour to the Client in respect of the Service.Feesmeans the fees as set out on Peakhour's pricing page, which may include a set up fee, licence fee and service fee as amended in accordance with clause 7.9.Force Majeuremeans an event that is beyond the reasonable control of a party, excluding: (a) an event to the extent that it could have been avoided by that party taking reasonable steps or reasonable care; or (b) a lack of funds for any reason.Governing Lawmeans the law of New South Wales, Australia.Intellectual Property Rightsmeans all forms of intellectual property rights throughout the world including copyright, registered patents, design, trade mark, know-how, trade-secrets and confidential information, and includes any enhancement, modification or derivative work based on the same.Interest Ratemeans the interest rate equivalent to 2% above the Reserve Bank of Australia cash rate target from time to time.Objectionablemeans objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.Page Viewsmeans each time a page of the Website is successfully loaded, including by the same IP address as recorded by Peakhour's Service. For the avoidance of doubt, a page view will not be counted where Peakhour's Service blocks a request to a page of the Website.Peakhour Datameans all data, content and information collected, held, used, created, or processed by Peakhour in the course of this Agreement (excluding Client Data), including the IP Address, browser, request path, query string, headers of each request submitted by an end user and other meta data in respect of the Client's Website.Permitted Purposemeans the use of the Service by the Client's Website for its internal business purposes only.Personal Informationhas the meaning given in the Privacy Act 1988 (Cth) and the Australian Privacy Principles attached to that Act.Reportmeans a report containing the number of page views the Client's website has received during the previous Report Period, as well as any other information Peakhour considers relevant.Report Periodmeans monthly, from date of signup.Servicemeans the peakhour.io service, which acts as an intermediary between the Client's Website and the users of the Client's Website.Termmeans the period from the commencement of this Agreement until termination or expiry of this Agreement.Trial Periodmeans the 14 day trial period of the Service which may be offered to prospective Clients by Peakhour.
- In this Agreement:
- clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
- words in the singular include the plural and vice versa;
a reference to:
- a party to the Agreement includes that party's permitted assigns;
- personnel includes officers, employees, contractors and agents, but a reference to the Client's personnel does not include Peakhour;
- a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
- including and similar words do not imply any limit;
- a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
- $ or dollars is a reference to Australian dollars;
- no term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party; and
- In the Agreement, the following terms have the stated meaning:
- By ticking the online acceptance box when ordering our Service online, or by emailing your acceptance when ordering via support, the Client and Peakhour hereby agree to the terms and conditions of this Agreement.
- During the Term, Peakhour grants to the Client a non-exclusive, non-assignable, revocable licence to access and use the software forming part of the Service on the Client's Website for the Permitted Purpose only and in accordance with this Agreement.
- During the Term, the Client grants Peakhour a worldwide, non-exclusive, revocable licence to store, copy, transmit and display Client Data; to grant any third party that provides services to Peakhour that interoperate with the Service a sub-license to the extent necessary for that third party to provide those services to Peakhour; and to use such Client Data to improve Peakhour's Services.
Peakhour will use its reasonable efforts to provide the Service to the Client:
- in accordance with this Agreement and all applicable laws;
- exercising reasonable care, skill and diligence; and
- using suitably skilled, experienced and qualified personnel.
- In respect of each Report Period, Peakhour will provide the Client with a Report. Peakhour will also advise the Client when the number of Page Views during any Report Period exceeds 75% of the permitted Page Views.
- Peakhour may provide additional software, products and/or services as part of the Service as requested by the Client (Optional Features) in a statement of work. Except as otherwise set out in an executed statement of work, Optional Features will be subject to the terms of this Agreement.
- Peakhour will use its reasonable efforts to provide the Service to the Client:
- Peakhour will use its reasonable efforts to ensure the Service is available to the Client 99.9% of the time (Uptime), provided that this will not apply to an event of Force Majeure, to scheduled maintenance or other development activity (of which Peakhour will use its reasonable efforts to advise the Client in advance), or as set out in clause 5.3. To the extent that the Service is not available for the agreed Uptime, Peakhour will use its reasonable endeavours to provide a workaround.
- In the event Peakhour fails to comply with clause 5.1, the Client's sole remedy will be termination of this Agreement in accordance with clause 15.2(a).
- The Client acknowledges that the Service relies on a range of third party products and services, including third party rulesets, software libraries, blocklists, and ISP services. Peakhour does not make any warranty or representation in respect of those products or features, including as to their availability or accuracy. Without limiting the previous sentence, if a third party feature provider ceases to provide that product or service or ceases to make that product or service available on reasonable terms, Peakhour will use its reasonable endeavours to replace that product or service, or otherwise provide a workaround.
- The Client must pay to Peakhour the non-refundable set up Fee on finishing their Trial Period.
- The Client will select a package, as outlined on our pricing page, that will entitle them to a set number of Page Views per Report Period for the licence fee;
- The licence fee is payable in advance at the start of each Report Period;
- During any Report Period in which the actual Page Views exceed the allocation of the selected package, then the Client must pay the excess fee as outlined on our pricing page;
- Excess fees will be automatically charged, along with the licence fee renewal, at the start of the next Report Period;
- The selected package will automatically renew at the end of each Report Period unless cancelled prior to the end of the Report Period;
- The Client may change their selected package at any time which will start a new report period. Any remaining time from the previous Report Period will be prorata credited to the Client's account for future invoices, this credit is not refundable. An invoice will then be raised for the new Report Period along with any excess usage from the previous Report Period.
- Peakhour may increase any, or all, of the Fees by giving the Client reasonable notice of the proposed increase. During that notice period, the Client may terminate this Agreement by giving notice to Peakhour. If the Client does not terminate this Agreement, the Client is deemed to accept the increase to the relevant Fee or Fees.
Terms of payment
- The Client acknowledges and agrees that Peakhour's payment provider will collect and store its credit card details.
- The Client authorises Peakhour's payment provider to automatically debit its credit card for all Fees at the same time Peakhour issues its invoice. Where the Client's credit card is based in a currency other than Australian dollars, the Client acknowledges that payment will be debited at the then current conversion rate.
- It is the Client's responsibility to maintain and update its credit card details and ensure there are sufficient funds available for the Fees. If a payment fails for any reason, Peakhour will notify the Client and re-attempt the payment the next business day. If the payment fails a second time, Peakhour may at its sole discretion charge the Client interest at the Interest Rate compounded monthly on the total amount outstanding from the due date until paid and/or suspend the Client's access to the Service. The Client agrees to reimburse Peakhour's reasonable costs incurred as a result of any payment failure pursuant to this clause.
- The Client must:
- do all things necessary to permit Peakhour to provide the Service, including pointing the Website domain name to the address nominated by Peakhour. The Client acknowledges its compliance with this obligation is a condition precedent to Peakhour providing any part of the Service to the Client;
- at all times, comply with the Acceptable Use Policy;
- use the Service in accordance with any Documentation and the reasonable instructions of Peakhour from time to time;
- use its reasonable endeavours to prevent any unauthorised access to, or use of, the Service; and
- notify Peakhour as soon as it becomes aware of any fault or defect or suspected fault or defect in the Service; any unauthorised access to, or use of, the Service; or any breach of the Acceptable Use Policy and to use its best endeavours to assist Peakhour in the diagnosis of any such fault or defect.
- The Client is responsible for ensuring its personnel comply with the Client's obligations under this Agreement. A breach of any term of the Agreement by the Client's personnel, or as a result of any action by any third party, is deemed to be a breach of the Agreement by the Client.
- If Peakhour notifies the Client of any third party report that any Client Data, any activities by any of the Client's end users, or any activities by the Client are in breach of any law or regulation, the Client must promptly (and in any event within three business days) take all appropriate steps in response to the third party report including by (as between the Client and Peakhour) taking responsibility and liability for the report.
- The Client must:
- The Client must, at all times, comply with the provisions of the Privacy Act 1988 (Cth) and the Australian Privacy Principles as though it is an APP entity (as that term is defined in the Privacy Act) to the extent that it is not.
- The Client acknowledges and agrees that the Service will decrypt all incoming and outgoing traffic to the Client's Website, which data will be re-encrypted by the Service.
- Title to all Intellectual Property Rights in the Service and all Peakhour Data is and remains the property of Peakhour (and its licensors).
- If the Client provides Peakhour with ideas, comments or suggestions relating to the Service (together Feedback) all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by Peakhour. To the extent the Client owns any Intellectual Property Rights in that Feedback, the Client hereby assigns those Intellectual Property Rights to Peakhour (including as a present assignment of future copyright).
- Title to all Intellectual Property Rights in the Client Data is and remains the property of the Client.
A party may not disclose or provide any unauthorised copies of any Confidential Information of a party to any person except:
- after obtaining the written consent of the other party;
- to its officers, employees and professional advisers on a need to know basis; or
- as required by an applicable law, after first consulting with the other party/parties about the form and content of the disclosure,
- Neither party will make any public announcement, disclose any information, or allow expressly or by default any other person to disclose information about this Agreement without having first obtained the approval in writing of the other party.
- A party may not disclose or provide any unauthorised copies of any Confidential Information of a party to any person except:
- Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when agreed to, will constitute binding obligations on the warranting party.
- Except as otherwise required by law:
- Peakhour gives no representation or warranty, express or implied, with respect to the functionality, performance, accuracy, completeness or fitness for purpose of the Service;
- Peakhour does not warrant that the Service will be uninterrupted, error free, or that it will meet any anticipated benefit or purpose or any other warranty regarding security, reliability, data integrity or protection from third party attacks; and
- the Service is provided on an 'as is' and 'as available' basis.
- If a condition or warranty cannot be excluded by contract, the condition or warranty is deemed to be included in the Agreement. To the extent permitted by law, Peakhour's maximum liability for any breach of that condition or warranty is limited to supplying the Package again for the same period as the duration of the breach.
- The maximum aggregate liability of Peakhour under or in connection with the Agreement or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Fees paid by the Client in the 12 months preceding the event giving rise to the claim.
- Neither party is liable to the other under or in connection with the Agreement or the Service for any consequential loss, including loss of profit, revenue, savings, business, data, goodwill and any other indirect, incidental or special damage or loss of any kind.
- Except to the extent permitted by law, Peakhour will have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from: security breaches (including interception of traffic sent or received by the Service); release, exposure, loss of, or loss of access to Client Data, including Personal Information of the Client's end users; actions of third parties, including deliberate interference with the Service by third parties; and mistakes, omissions, interruptions, defects or other failures of the Service or third party products and services incorporated into the Service.
- Clauses 13.1 and 13.2 do not apply to limit a party's liability under or in connection with the Agreement for personal injury or death.
- Clause 13.1 does not apply to limit the Client's liability to pay the Fees.
- Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, by the negligence or misconduct of the other party or its personnel, or by an event of Force Majeure.
- Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
- The Client will defend, indemnify and hold harmless Peakhour from a claim by any third party arising out of, or related to, the Client's use of the Service in breach of this Agreement, including any breach by the Client of the Acceptable Use Policy.
Termination and Suspension
- This Agreement may be terminated by either party on 30 days' notice.
Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
breaches any material provision of the Agreement and the breach is not:
- remedied within 15 business days of the receipt of a notice from the first party requiring it to remedy the breach; or
- capable of being remedied; or
- is unable to perform a material obligation under the Agreement for 15 business days or more due to an event of Force Majeure.
- breaches any material provision of the Agreement and the breach is not:
Consequences of Termination or Expiry
Upon termination or expiry of this Agreement for any reason:
- all rights granted to the Client under, or in accordance with, this Agreement immediately cease;
- the Service will be terminated by Peakhour;
- the Client must pay to Peakhour all outstanding Fees;
- the Client will not be entitled to any refund in respect of Fees already paid, except to the extent that the Client has paid in advance for a period of more than a month, in which case Peakhour will refund a pro rata portion of the Licence Fee and Service Fee with respect to the period after the end of the then current month, less a $30 handling fee; and
- except as otherwise required by law, Peakhour will delete all cached Client Data it holds. For the avoidance of doubt, Peakhour retains all Peakhour Data.
- Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
- On termination or expiry of the Agreement, each party must (at the request of the other party) promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
- Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 1, 7, 10, 11, 13, 14, 16 and 18, continue in force.
- Upon termination or expiry of this Agreement for any reason:
Without limiting any other right or remedy available to Peakhour, Peakhour may by notice to the Client, restrict or
suspend the Client’s access to the Service where the Website is preventing delivery of the Service or where the
Client (including any of its personnel):
- undermines, or attempts to undermine, the security or integrity of the Service;
uses, or attempts to use, the Service:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
- has otherwise materially breached the Agreement, including the Acceptable Use Policy (in Peakhour’s reasonable opinion).
- Without limiting any other right or remedy available to Peakhour, Peakhour may by notice to the Client, restrict or suspend the Client’s access to the Service where the Website is preventing delivery of the Service or where the Client (including any of its personnel):
- If a dispute arises, neither party may commence any court or arbitration proceedings relating to the dispute until it has complied the provisions of this clause, except to seek urgent interlocutory relief.
Should any dispute arise, the parties must attempt to resolve the dispute as follows:
- if not resolved satisfactorily at an operational level, either party may issue a written notice to the other party setting out the details of the dispute (Dispute Notice); and
- within fifteen business days of receipt of a Dispute Notice, the respective executive officers / managing director or equivalent of the parties will meet in order to attempt to negotiate an amicable settlement. The meeting will take place at such time and place as agreed between the parties. Such negotiation will be conducted in English in good faith, with the genuine intention of resolving the matter; and
- should the parties be unable to resolve the matter within the fifteen business days referred to in clause 18.2(b), either party may immediately refer the dispute to the Australian Disputes Centre for mediation (‘ADC’) and the parties will use reasonable endeavours to resolve the dispute following the ADC Guidelines for Commercial Mediation. For the avoidance of doubt, the parties agree to the appointment of the mediator on the terms of the Mediation Appointment Agreement contained in the ADC Guidelines for Commercial Mediation, the terms of which are incorporated into this Agreement.
- Each party must pay its own costs in relation to complying with this clause except that the costs and expenses of the mediation (other than the parties' own legal costs) will be borne by the parties equally.
- Unless prevented by the nature of the dispute, the parties will continue to perform this Agreement while attempts are made to resolve the dispute.
Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the
Agreement to the extent caused by Force Majeure, provided that the affected party:
- immediately notifies the other party and provides full information about the Force Majeure;
- uses best efforts to overcome the Force Majeure; and
- continues to perform its obligations to the extent practicable.
- Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
- Independent contractor: Peakhour is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
- Notices: A notice given by a party under the Agreement must be delivered to the other party via email or other address notified by the other party for this purpose.
- Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
- Variation: Peakhour may vary this Agreement from time to time by providing Clients with 30 days' notice
- Entire agreement: The Agreement sets out everything agreed by the parties relating to the Service, and supersedes and cancels anything discussed, exchanged or agreed prior to the commencement of this Agreement. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement.
- Subcontracting and assignment: The Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
- Law: The Agreement is governed by, and must be interpreted in accordance with, the Governing Law. Each party submits to the non-exclusive jurisdiction of the Courts of the Governing Law.
- Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party: