1. Definitions and Interpretation

In this Agreement unless the context otherwise requires:

Agreement means this agreement and its schedule.

Customer Data means any electronic data or information submitted or provided by Licensee through the use of the Product.

Product means the Modules of the workflow management platform Kawaconn.

Terms means the terms and conditions of this Agreement.

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Product may be contingent on, or impacted by.

2. Usage Grant

2.1. Subject to the terms and conditions of this Agreement the Licensor agrees to use commercially reasonable efforts to provide Licensee with the Product.

2.2. The Licensor reserves the right to update or modify the Product at any time.

2.3. The Licensor or its partners will deliver the Product via hosting infrastructure.

2.4. By using the Product, you consent to the Licensor using subcontractors to host the Product.

3. Access and Security

3.1. Use of the Product is conditioned on Licensee obtaining and maintaining access to the internet, and all equipment necessary for proper operation of the Product.

3.2. Licensee is required to maintain and use secure user names and passwords for the access and use of the Product.

3.3. User names and other log-in credentials are for your internal use only and you will not sell, transfer, or sublicense them to any other entity or person, except that you may disclose your credentials to your agents and subcontractors performing work on your behalf.

3.4. Licensee shall be solely responsible for ensuring the security and confidentiality of those user names and passwords, and shall notify Licensor immediately of any unauthorized use or other known breach of security.

3.5. Licensee is responsible for all activities that occur under Licensee’s user names and passwords. Licensee shall immediately report to Licensor and use reasonable efforts to stop any known or suspected copying or distribution of the Product.

3.6. Licensee is responsible for the use of the Product by Licensee’s Users.

4. Customer Data

4.1. Licensee will be solely responsible for providing all Customer Data required for the proper operation of the Product.

4.2. Licensee shall have sole responsibility for the accuracy, quality, integrity, reliability and the right to use all Customer Data or other data submitted to the Product.

4.3. Licensor has no liability and expressly disclaims all liability, for loss or damage for or related to any Customer Data or information submitted to Licensor through use of the Product, except where such liability arises directly from the Licensor’s gross negligence or wilful misconduct.

4.4. You acknowledge and agree that the Product may interact with, or be reliant on, certain Third Party Inputs, including Microsoft Azure.

4.5. To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any liability caused or contributed to by, arising from or connected with any Third Party Inputs, including Microsoft Azure.

5. Data and Data Recovery

5.1. We will, for the purposes of disaster recovery, endeavor to maintain a fully replicated version of Customer Data in a location that is physically separate from the location at which Customer Data is stored or processed for normal production purposes.

5.2. Where there is a loss of or damage to Customer Data, if practicable, we attempt to reload and, if reload is not possible, at your request, reconstitute or restore Customer Data saved at the last backup using industry standard data restoration techniques, the cost of which will be borne by you.

6. Security

Subject to the terms of this Agreement, we will endeavour to establish and maintain appropriate, reasonable technical and organisational security measures to keep Customer Data secure.

The Licensor warrants that Kawaconn has been certified as conforming to the requirements of INFORMATION SECURITY MANAGEMENT SYSTEM – ISO/IEC 27001:2022 for the following scope:

“Information Security Management System for providing SaaS applications in the Medico-Legal, insurance, compensation, disability, health, aged care and finance sectors.”

And undertakes to maintain this Certification throughout the License Period.

7. Security Incidents

7.1. If either Party becomes aware of or reasonably suspects that a security incident has occurred arising from our provision of the Product, such that Customer Data has been compromised (for example, unauthorised access) (each a Security Incident), that Party must promptly notify the other Party and we agree to, within a reasonable time, remediate the Security Incident to the extent that this is operationally, commercially and technically feasible.

7.2. You agree that we may suspend the Product where a Security Incident has or may have occurred and this is considered necessary or prudent (as determined by us, at our reasonable discretion) to address or deal with the Security Incident.

7.3. We will bear our costs in conducting any investigation or remediation required under this clause, unless the incident triggering the Security Incident was caused or contributed to by you (or your personnel or your authorised users), in which case, you will be liable for those costs reasonably and necessarily incurred by us arising from the Security Incident.

8. Limitations

8.1. Limitations on transfer

You may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Products.

You may not:

1. share the Licence, or contents of the Product, with Users unless User Fees are paid;
2. decompile, “reverse engineer”, disassemble, or otherwise attempt to derive the source code for the Product;

8.3. Limitations on derived works

You may not modify the Product, create derivative works based upon the Product, or use the Product to develop any product having the same primary function as the Product.

8.4. Limitations on alteration

You may not:

1. modify the Product or create any derivative work of the Product or its accompanying documentation. Derivative works include but are not limited to translations; or
2. alter any files or libraries in any portion of the Product.

8.5. Limitations on copying

You may not copy any part of the product except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.

9. Confidentiality

9.1. Each party may have access to information that is confidential to the other party (“Confidential Information”) including, with respect to Licensor, the Product, technology and technical information, and any other proprietary business processes disclosed by Licensor; with respect to Licensee, Customer Data, and any other information which is not otherwise readily available in the public domain.

9.2. Confidential Information also specifically includes all information marked “confidential,” and the pricing terms of this Agreement.

9.3. The parties agree to use the same degree of care to protect the other’s Confidential Information as they use to protect the confidentiality of their own (but never less than reasonable care).

9.4. Unless otherwise Agreed in writing the parties also agree.

1. not to make each other’s Confidential Information available to any third party (other than employees and contractors who need access to perform the services specified under this Agreement),
2. not to use each other’s Confidential Information except as otherwise permitted by this Agreement, and
3. to hold each other’s Confidential Information in confidence during the term of this Agreement and for as long as they have custody or control of Confidential Information.

9.5. Either party may disclose Confidential Information to the extent compelled by law to do so, provided the disclosing party first give the other party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.

10. Ownership

Kawaconn or its subsidiaries, affiliates, and suppliers retain all rights, title and interest, including all copyright and intellectual property rights, in and to, the Product and all copies thereof.

11. Warranties and exclusions

11.1. Laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Kawaconn and its subsidiaries, affiliates, and suppliers (“Implied Terms”). If these Implied Terms apply, Kawaconn’s liability will be limited at its option to resupply, repair or replacement of the Product or the cost of such resupply, repair or replacement, to the extent permitted by law.

11.2. Subject to clause 13.1, each Party’s aggregate liability for any liability arising from or in connection with this Agreement will be limited to Kawaconn resupplying the Product to you or, in our sole discretion, to Kawaconn repaying you the amount of the Fees paid by you to Kawaconn in respect of the supply of the relevant Product to which the Liability relates.

11.3. The Licensor agrees to effect and maintain (at a minimum) IT professionals’ insurance policy during the Term and, upon request, agrees to provide you with evidence sufficient to confirm our compliance with this clause 13.3.

11.4. Unless otherwise explicitly agreed to in writing by Kawaconn, subject to the Implied Terms, all representations, guarantees, conditions and warranties of any nature are expressly excluded.

11.5. Nothing in this clause excludes, restricts or modifies your rights under an Implied Term.

12. Exclusion of damages

Subject to any Implied Term, neither Party, its directors, officers, employees, or agents will be liable to the other Party or any other party for indirect, consequential, special, incidental, punitive or exemplary damages of any kind arising in connection with these Terms, the Product, any software for the Product or any support Product for the Product, whether based on contract, tort, statute, or any other legal theory.

13. Limitation of liability and remedies

To the extent that the applicable jurisdiction limits Kawaconn’s ability to disclaim any implied warranties, this disclaimer shall be effective to the maximum extent permitted.

14. Licensee indemnity

You will indemnify Kawaconn, its directors, officers, employees, agents and contractors in full against any liability, loss, damages, costs and expenses as a result of or in connection with your use of the Product, including but not limited to, any modification by you of the Product which causes the Product to infringe the intellectual property rights of a third party.

15. Variation of Terms

Kawaconn may from time to time update, change or amend these Terms and/or the Services (a Service Change), including during a current Subscription Term. However, Kawaconn will not make a Service Change that requires you to pay any additional Fees or deprives you of a substantial or material benefit of the Services or these Terms.

Kawaconn will notify You of a Service Change by email sent to your Kawaconn Contact. The Service Change will take effect thirty (30) days after the date the email is sent to You or at such later time specified by Kawaconn.

Your use of the Services after any changes to the Terms constitutes your agreement to be bound by such changes.

16. Termination

16.1. Without prejudice to any other rights, the Licensor may terminate this Agreement immediately and without further notice if you fail to comply with the Terms of this Agreement.

16.2. Licensor may suspend access to Licensee’s Customer Data or use of the Product if Fees are not paid by the due date.

16.3. The Licensee may terminate this Agreement without prior notice within the first three months.

16.4. Either party may terminate this Agreement at any time after the first three months by giving the other party not less than 60 days written notice.

Upon termination of your Subscription, you must immediately cease all use of the Services. You agree that upon the termination of Your Subscription, we may immediately deactivate your Services and may delete your account and data after thirty (30) days. Kawaconn shall grant you access to the Services for (30) thirty days from the termination of Your Subscription for the sole purpose of permitting you to retrieve your data.

In the event of termination of this Agreement:

• You agree to pay the balance due on Your Subscription (if any) and You agree that Kawaconn may charge such unpaid fees to Your credit card, debit card, or bank account on file. You may not unilaterally revoke prior consent authorising Kawaconn to charge the credit or debit card on file to avoid paying the balance due; and
• Kawaconn will, upon written request, delete all Client Data and confirm deletion in writing to You.

17. General provisions

17.1. Any provision of, or the application of any provision of this Agreement, which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

17.2. Any provision of, or the application of any provision of this Agreement, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

17.3. The failure, delay, relaxation or indulgence on the part of a part in exercising, in part or whole, any power, right or remedy conferred upon that party by these Terms shall not operate as a waiver of that power, right, or remedy.

17.4. This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.

17.5. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.

17.6. This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia.