Application of Terms
- The Client agrees to these Terms by accepting the SaaS SOW.
Client’s use only
- These Terms permit only the Client to access and use the Services.
- Any third party who wishes to access and use the Services must enter into a separate agreement with The Today Business.
- On the Client’s acceptance of the SaaS SOW, The Today Business will create a unique account (Client Account) for the Client to use during the Subscription Term.
- The Client Account will be operated by a username and password (Client Password). The username and password can be changed at any time by notifying The Today Business.
- Subject to payment of the Setup Fees, The Today Business will provide the Setup Services to the Client as soon as practicable after the Start Date, or such later date agreed by the parties.
- The Client:
- acknowledges that the provision of the Setup Services will require the Client to provide The Today Business with certain information and access to its systems, data and Personnel; and
- will promptly provide such information, cooperation and access at the request of The Today Business.
The Today Business grants the Client a non-exclusive, revocable, non-transferable and non-sub-licensable licence to permit its Authorised Users to:
- access the SaaS Platform; and
- use the Services and Documentation,
during the Subscription Term solely for its business purposes.
The Client undertakes that:
- the maximum number of Authorised Users that the Client can authorise to use the Services and Documentation will not exceed the number of User Subscriptions the Client has purchased from time to time;
- each Authorised User will keep a secure, confidential, non-transferable username (User Name) and password (User Password) for using the Services and Documentation;
- it will not permit the Client Password to be used by any person not authorised to operate its Client Account, and will immediately notify The Today Business if it believes the Client Password has been, or may be, used without authorisation;
- it will immediately notify The Today Business of any unauthorised use of its Client Account or Client Password; and
- it will maintain a written up to date list of current Authorised Users and provide such list to The Today Business within 5 Business Days of a request.
- The Client must permit The Today Business and its Personnel to audit the SaaS Platform to verify the name and username of each Authorised User.
- If an audit under clause 6.2(a) reveals that a password has been provided to an individual who is not an Authorised User, then, without prejudice to the other rights of The Today Business, the Client must promptly disable the username and password. The Today Business may not issue a new username or password to that individual.
- Client’s responsibility for use by Authorised Users
- The Client must:
- maintain control over all User Names and User Passwords, and implement security measures to ensure that no unauthorised person may gain access to the Services using the User Names and User Passwords;
- remain responsible for use of the Services by all Authorised Users or persons who directly or indirectly access the Services through the User Names and User Passwords, whether or not authorised by the Client;
- control each Authorised User’s level of access to the Services and may revoke or change an Authorised User’s access by notifying The Today Business;
- not impersonate another client or Authorised User or provide false identity information to gain access to the SaaS Platform or use the Services; and
- ensure the Authorised Users use the Services and the Documentation strictly in accordance with these Terms.
- The Client is responsible for any act or omission of an Authorised User or an Authorised User’s breach of these Terms (as if it was the acts or omissions of the Client).
- The Client is responsible for all activities that occur through the use of its Client Password or Client Account. The Today Business is not responsible or liable for any Loss due to misused, stolen or hacked Client Passwords or Client Accounts.
- The Today Business has no access to the current Client Password and User Password and may only reset the Client Password or User Password (if necessary).
- The Client must:
Accessing the SaaS Platform
During the Subscription Term, the Client must, at its cost obtain and maintain all hardware, software and communications equipment necessary to access and use the Services and pay for all third party connectivity costs to connect to the Services, and ensure that such hardware, software and equipment complies with the applicable specifications and guidelines specified in the
Documentation or otherwise communicated to the Client from time to time; and
The Client must not access, store, distribute or transmit:
- any viruses, worms, trojans or other malicious code; or
- any material during its use of the Services that:
- is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of a third party;
- facilitates illegal activity;
- abuses the Services or causes damage or injury to any person or property; and
- corrupts, degrades or disrupts the operation of the SaaS Platform.
The Client must not do, or attempt to do, any of the following:
- copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any part of the SaaS Platform and Documentation in any form or media or by any means;
- infringe The Today Business IP;
- modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SaaS Platform or learn the source code or algorithms underlying the SaaS Platform;
- access all or any part of the Services in order to build a product, service or code which directly or indirectly competes with the SaaS Platform;
- license, sell, rent, lease, transfer, assign or otherwise commercially exploit or make the Services or Documentation available to any third party other than the Authorised Users, except as expressly permitted under these Terms or The Today Business;
- assist third parties in obtaining access to the Services or Documentation, except as expressly permitted under these Terms;
- alter, remove, obscure or interfere with any notices relating to Intellectual Property rights (including copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers) appearing in, or on, or affixed to, the SaaS Platform or the Documentation; and
- engage in illegal behaviour, including:
- unauthorised access to, or use of, data, services, systems or networks, such as to breach security or authentication measures without express authorisation of the owner of the system or network;
- collecting information by deceit, such as by Internet scamming, password robbery, phishing, security hole scanning, and port scanning; and
- any other activity or conduct that is in breach of a Law.
- The Today Business obligations
- During the Subscription Term, The Today Business must provide the Services to the Client
- The Today Business obligations
- substantially in accordance with the SaaS SOW and Documentation.
- Clause 10.1(a) does not apply to:
- a non-conformance which is caused, or contributed to, by the Client using the Services in a way contrary to The Today Business’ instructions or these Terms;
- modification or alteration of the Services by any person other than The Today Business or its Personnel;
- the unsuitability or malfunction of the Client’s computer hardware or software used for the Services;
- Uncontrolled Events; and
- the unsuitability or malfunction of the Services when used in conjunction with any software, platforms, applications and tools supplied by a third party provider.
- Remedial action for non-conformance
- If The Today Business fails to provide the Services in accordance with clause 10.1, it must, at its cost, use reasonable endeavours to correct the non-conformance, or provide the Client with a substitute means of achieving the desired performance of the Services. The correction or substitution constitutes the Client’s sole and exclusive remedy for a breach of clause 10.1.
- Notwithstanding anything else and to the fullest extent permitted by Law, The Today Business:
- does not warrant that the Client’s use of the Services will be uninterrupted, virus-free or error-free, or that the Services, Documentation or information obtained by the Client through the Services will meet its requirements; and
- is not responsible for any delays, delivery failures, or any other Loss resulting from the transfer of data over communications networks and facilities, including the Internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities or networks.
- The Today Business may increase the Fees at any time with 30 days’ notice to the Client.
- If the Client does not agree to a fee increase, it may terminate the SaaS SOW by giving notice to The Today Business within 14 days after the Client received notice of the fee increase. The SaaS SOW will then terminate the day before the fee increase takes effect.
The Client may need to provide Client Data to The Today Business as part of its use of the Client Account.
- The Client owns the Client Data and is solely responsible for the legality, reliability, integrity, accuracy and quality of the Client Data.
- The Today Business is not responsible for the reliability, accuracy or currency of any information or Client Data uploaded or submitted to the SaaS Platform, and the Client is solely responsible for uploading or submitting the most up to date information or Client Data to the SaaS Platform.
Subject to clause 12.5, the Client grants The Today Business a worldwide, non-exclusive, royalty-free, perpetual, non-transferrable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, the Client Data (and all Intellectual Property contained in it) for any purpose, including for the purpose of:
- enabling The Today Business to provide the Services and perform its obligations and exercise its rights under these Terms;
- informing the Client of other products or services that The Today Business may offer from time to time;
- using usage patterns, trends, and other statistical or behavioural data derived from use of the Services for the purposes of providing, operating, maintaining, and improving the Services or The Today Business products and services; and
- sharing Client Data with a Related Body Corporate or third party (with whom The Today Business may contract or be affiliated from time to time) for the purposes of providing or improving the Services.
- Back ups
- The Today Business must follow its archiving procedures for Client Data in accordance with its Back Up Policy from time to time.
- In the event of a Loss to Client Data, the Client’s sole and exclusive remedy is for The Today Business to use reasonable endeavours to restore the lost or damaged Client Data from the latest back-up of Client Data maintained by The Today Business in accordance with the Back Up Policy.
- The Today Business is not responsible for any Loss, destruction, alteration, corruption or disclosure of Client Data caused by an act or omission of the Client, its Authorised Users or any third party.
- Personal Information
The Client warrants that, in relation to any Personal Information in the Client Data:
- it has obtained all necessary consents and rights to grant The Today Business the licence in clause 12.3.
- The Today Business owns the Intellectual Property in the Services, including the SaaS Platform, and the Documentation (and all updates, modifications and anything else arising or generated from them).
- Unless expressly stated, these Terms do not grant the Client or anyone else a right to or in the Intellectual Property, or any other right or licence, in respect of the Services, the SaaS Platform or the Documentation, whether existing now or in the future.
- The Client must not submit, publish or input Client Data, Personal Information or any other information into the SaaS Platform unless it has the rights to do so, and must ensure its Authorised Users comply with this clause 13(c).
Except as expressly stated in these Terms:
- the Client is solely responsible for any results obtained from, or outcomes arising from, the Client’s access to, and use of, the Services, including the SaaS Platform, and the Documentation, and for conclusions drawn from such use;
- The Today Business is not liable to the Client or any Authorised User, Customer or third party for any:
- decision, act, or failure to act by the Client based on any results obtained from the Client’s access to, and use of, the Services and the Documentation; and
- damage caused by errors or omissions in any information or instructions provided to The Today Business by the Client in connection with the Services or any actions taken by The Today Business at the Client’s direction;
- the Services and Documentation are provided to the Client on an ‘as is’ basis;
- The Today Business makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Services or the SaaS Platform;
- The Today Business is not liable if the Services or the SaaS Platform are unavailable for any reason, including as a direct or indirect result of:
- telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
- negligent, malicious or wilful acts or omissions of third parties (including the third party service providers of The Today Business);
- maintenance or repairs carried out by The Today Business or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the SaaS Platform; or
- services provided by third parties (including internet service providers) ceasing or becoming unavailable.
In addition to the indemnities provided under the MSA, the Client must indemnify and hold The Today Business, its Related Bodies Corporate and the Personnel of those entities harmless from and against all Claims and Losses (including legal costs) brought against them or which they may sustain or incur as a direct or indirect result of, or arising out of:
- a breach or non-performance of an obligation under these Terms by the Client or an Authorised User;
- a negligent, wilful or wrongful act or omission by the Client or an Authorised User;
- Loss of property belonging to the Client, an Authorised Users or a third party or any personal injury or death arising out of or in connection with these Terms;
- Loss suffered or incurred by the Client, an Authorised User or a third party as a result of the Client’s failure (or any Authorised User’s failure) to upload or submit accurate or reliable information or Client Data onto the SaaS Platform;
- breach of a third party’s Intellectual Property by the Client or an Authorised User; or
- actual or alleged breach by the Client or an Authorised User of a Law.
Capitalised terms in these Terms are defined in the MSA, the SaaS SOW, or the Terms above or below.
Authorised Users means the employees, agents and independent contractors of the Client who are authorised by the Client (either on a restricted or unrestricted basis) to access the SaaS Platform and Documentation and use the Services.
Client Account has the meaning in clause 3(a).
Client Data means all data, works and materials:
- uploaded to, or stored on, the SaaS Platform by the Client, an Authorised User or a Customer;
- transmitted by the SaaS Platform at the instigation of the Client;
- supplied by the Client, an Authorised User or a Customer to The Today Business for uploading to, transmission by, or storage on, the SaaS Platform; or
- generated by the SaaS Platform through the Client’s use of the Services.
Client Password has the meaning in clause 3(b).
Customer means a person whose information, including Personal Information, is inputted into the SaaS Platform by or on behalf of the Client.
Documentation means the manuals, user guides and other documents made available to the Client by The Today Business from time to time, which describe the Services, including the SaaS Platform.
Subscription Term means the aggregate of the Initial Subscription Term and the Renewed Subscription Terms (if any).
User Name has the meaning in clause 6.1(b).
User Password has the meaning in clause 6.1(b).
User Subscriptions means the maximum user subscriptions purchased by the Client for Authorised Users to access the SaaS Platform and use the Services and the Documentation.