SUBSCRIPTION AGREEMENT

  1. SUBSCRIPTION AGREEMENT

 

This subscription agreement sets out the terms and conditions on which Maralytics provides its

Customers and their Authorised Users with access to and the use of the Maralytics Application.

This Agreement applies to both Trial Subscription and Paid Subscription Customers and their

Authorised Users.

 

By choosing to register with Maralytics, the Customer represents and acknowledges that it has

read, understood and agreed to be bound by the terms and conditions of this Agreement. If

you enter into this Agreement as an agent, officer, employee or other representative of a

Customer, you and the Customer warrant to Maralytics that you are duly authorised to enter into this Agreement on behalf of the Customer.

 

  1. DEFINITIONS AND INTERPRETATION

 

2.1 Definitions

In this Agreement, unless the contrary intention appears, the following words have the

following meanings:

 

Additional Fee                 

means any fee payable by the Customers to Maralytics for the provision of any Additional

Services, charged at a rate as agreed between the parties, including the Subscription Fees payable under clause 5.4.

 

Additional Services       

means any additional, customised or customisable services which Maralytics may provide at the request of its Customers, for an Additional Fee, at any time and from time to time, and includes without limitation, the provision of consulting, customisation, implementation, training, integration or any other additional services.

 

Administrator Email Address

any email address in relation to which the Customer has providednSystem Administrator’ level access within the Maralytics Application, whether or not that level of access has been renamed by the Customer.

 

Agreement

means this subscription agreement and the terms and conditions contained therein and includes, the Rate Sheet, Statement of Works and any notices published on the Maralytics Website or on the Customer Installation at any time and from time to time.

 

Annual Subscription

means an annual Paid Subscription in respect of which the Subscription Fees are paid annually.

 

Annual Subscription Period

means, in respect of an Annual Subscription, the annual period of a Paid Subscription that has been invoiced in advance.

 

Authentication Creditial

means the username and password or any other means of authentication which an Authorised User must use to gain access to the Maralytics Application.

 

Authorised User Data

means all information stored in the Maralytics Application in respect of an Authorised User’s individual Maralytics profile.

 

Authorised User

means any current or former employees, officers, agents, contractors or any other representatives of the Customer, its subsidiaries or other related entities who have been issued with an Authentication Credential in accordance with this Agreement irrespective of whether their account to access the Maralytics Application is active and irrespective of whether they are acting in the capacity of the Customer.

 

Business Day

means a day, which is not a Saturday, Sunday or gazetted public holiday.

 

Claim

means any claim, cause of action, Liability, demand, request, requisition, notice, direction, allegation, action, proceeding, damage or judgment arising in any manner and at any time, and whether present, immediate, unascertained, future or contingent whether at law, in equity, under statute or otherwise, including a claim from or relating to a breach of the Agreement.

 

Commencement Date

means the date a Customer first registers online or otherwise with Maralytics or otherwise confirms its acceptance of this Agreement.

 

Confidential Information

includes:

                (a) in respect of Maralytics, its subsidiaries and other affiliates:

(i) the source code, look and feel and any other information regarding the Maralytics Application not referenced elsewhere in this subparagraph (a) and which is not generally available to the public;

(ii) the contents of this Agreement, the Rate Sheets, the Statement of Works, and the Documentation;

(iii) all trade secrets, confidential operations, processes or dealings relating to Maralytics or its customers, suppliers, finances, affairs, management, operations, operational knowhow, sales, marketing or any categories of information related to Maralytics, including without limitation the Intellectual Property;

 (iv) any other information disclosed by Maralytics that:

(A) is identified as being confidential; or

(B) would be apparent to a reasonable person that such information was disclosed in confidence by a Maralytics;

(b) in respect of a Customer:

(i) the Customer Data, other than Authorised User Data; and

(ii) any information disclosed by the Customer in connection with the Subscription Services and Additional Services (if any) that is:

(A) is identified as being confidential; or

(B) would be apparent to a reasonable person that such information was disclosed in confidence by a Maralytics; and

(c) Confidential Information includes any information provided or obtained on, before or after the Commencement Date but does not include information which is in or has become part of the public domain, other than as a result of a breach of this Agreement or an obligation of confidence or other legal obligation, or information which a party proves was independently and lawfully acquired or developed without breaching any of the obligations set out in this Agreement or other legal obligation.

 

Consequential Loss

means in relation to a breach of this Agreement, any indirect loss or damage (including, without limitation, loss of production, loss of profit, loss of revenue, loss of contract, loss of goodwill, liability under other agreements or liability to third parties) resulting from such breach, together with punitive and exemplary damages.

 

Customer

means the person who registers to use the Maralytics Application, any party identified as the customer on any registration, order or other similar form or document submitted to Maralytics and includes Enterprise Customers.

 

Customer Data

means all information or communications (whether relating to the Customer or its Authorised Users or otherwise) uploaded to the Maralytics Application by or on behalf of a Customer or its Authorised Users.

 

Customer Installation

means the installation program of the Maralytics Application made available by Maralytics to its Customers which may vary from time to time through a nominated URL published or provided by Maralytics to its Customers.

 

Data Controller

has the meaning given to the term ‘controller’ in the Data Protection Legislation.

 

Data Processor

has the meaning given to the term ‘processor’ in the Data Protection Legislation.

 

Data Protection Legislation

means (i) Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (the “General Data Protection Regulation”); and (ii) any other legislation in force from time to  time in the European Union applicable to the parties relating to either or both privacy or the Processing of Personal Data.

 

Data Subject

has the meaning give to that term in the Data Protection Legislation.

 

Maralytics

has the meaning given in Clause 30.11.

 

Maralytics Application

means any version (as applicable) of the analytics application, workplace social media, services and other online software applications made available by Maralytics for use by its Customers and their Authorised Users from time to time and includes (where applicable) the Customer Installation.

 

Maralytics Infrastructure

means the computer servers or other hardware used by Maralytics

in connection with its provision of the Subscription Services and Additional Services (if any).

 

Maralytics Website

means the website with the URL www.Maralytics.com and any other website which Maralytics may use or provide to its Customers for use at any time and from time to time.

 

Documentation

means any manuals, guides, reference materials or other similar documents, written or otherwise, provided by Maralytics or made available by to its Customers in respect of the Maralytics Application.

 

EEA

means the European Economic Area.

 

Enterprise Customer

means a Customer that is issued with a Statement of Works or is determined to be an Enterprise Customers at any time and from time to time at Maralytics’s sole and absolute discretion.

 

Enterprise Customer Service Guarantee

means the service level guarantee applicable only to Enterprise Customers and are as described in clause 13 and Schedule 1.

 

Fair Use Policy means the policy, as described in clause 9, which governs the use of       the SMS Services, Maralytics Application, Maralytics Website, Maralytics Infrastructure or any other services, application and infrastructure provided or supplied by Maralytics.

 

Fees

means any fees or other amounts payable by a Customer to Maralytics for any services provided pursuant to this Agreement, and includes without limitation the Subscription Fee, the Optional Usage Fee and the Additional Fee.

 

Force Majeure Event

means a strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, any outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority, any government law, regulation, restraint or requirement, or any other cause beyond the reasonable control of Maralytics and includes, without limitation, the following:

(a) an outage or impairment of the hosting and any other services provided to Maralytics

(b) an outage or impairment of the messaging and other services provided to Maralytics

(c) other internet, telecommunications or utility outage or impairment which is beyond the reasonable control of Maralytics.

 

Government Authority

means (as appropriate) any:

(a) federal, state or local government;

(b) department of any federal, state or local government;

(c) any court or administrative tribunal; or

(d) statutory corporation or regulatory body.

 

Improvement

means any addition, modification, alteration, development, new use or other changes to the Maralytics Application which may be made at any time and from time to time by Maralytics with the aim to improve the accuracy, usefulness, functionality, efficiency, cost effectiveness and any other improvements on the Maralytics Application.

 

Indirect Tax

means a goods and services tax, a sales or use tax, a value added tax, a consumption tax or a tax of a similar kind which may apply.

 

Initial Term

has the meaning given to it in the Statement of Works.

 

Insolvency Event

in respect of a Customer, means the happening of any of these events:

(a) the Customer becoming the subject of a petition in bankruptcy or     any other proceeding relating to insolvency, receivership, liquidation;

(b) an assignment for the benefit of creditors;

(c) suspending payments of its debts, ceasing (or threatening to cease) to carry on all or a material part of its business, stating that it is unable to pay its debts or otherwise becoming insolvent;

(d) any analogous event.

 

Intellectual Property

means all present and future rights to intellectual property including any inventions and improvements, trademarks, designs, copyright, any corresponding property rights under the laws of any jurisdiction and any rights in respect of an invention, discovery, trade secret, secret process, know-how, concept, idea, information, process, data or formula as well as any patents and patent applications, copyrights and all brand names and business names as may be developed or registered now or in the future by Maralytics or any of its subsidiaries or other affiliates, whether registered or unregistered and includes, without limitation:

(a) the Customer Installation;

(b) the Maralytics Application;

(c) the Maralytics Infrastructure;

(d) the Maralytics Website;

(e) any Documentation; and

(f) any Improvements.

 

Liability

means any liability, loss, cost, expense, amount due, debt, damage, charge, penalty, and any other obligation, and whether fixed or contingent.

 

Loss

means any loss (direct and Consequential Loss), damage, claim, action, liability, cost, expense, charge, penalty, and legal costs and expenses on a full indemnity basis however arising.

 

Monthly Subscription

means a monthly Paid Subscription in respect of which the Subscription Fees are paid monthly.

 

Non-Enterprise Customer

means each Customer that is not an Enterprise Customer.

 

Online Technical Support

means the receipt of and response to any online technical support  queries submitted by the Customer or its Authorised Users in respect of the use and operation of the Maralytics Application.

 

Optional Usage Fee

means the then current fees payable for the subscription of optional features available on the Maralytics Application (for example, SMS fees), the rate at which is specified in the Rate Sheet, which may be varied at any time and from time to time.

 

Paid Subscription

includes different types of subscription to varying levels of access to the Maralytics Application and the Subscription Services which is made available by Maralytics to its Customers in consideration for the Subscription Fees, the content of which may be varied by Maralytics at any time and from time to time.

 

Personal Data

has the meaning given to that term in the Data Protection Legislation.

 

Payment Facility

means any credit card, bank card, bank account or other payment facility, details for which are provided by the Customer to Maralytics in respect of the payment of the Fees.

 

Rate Sheet

means the then current pricing documentation made available to Customers on the Maralytics Website or Customer Installation or provided by Maralytics to its Customers, the content of which may be varied at any time and from time to time.

 

Restricted Transfer

means: (a) a transfer of Personal Data from the Customer to Maralytics; or (b) an onward transfer of Personal Data from Maralytics to another sub-processor (or between two establishments of Maralytics), in each case, where such transfer would be prohibited by the Data Protection Legislation in the absence of the appropriate safeguards such as the Standard Contractual Clauses to be established under clause 21.4(a) below. For the avoidance of doubt: (a) without limitation to the generality of the foregoing, the parties to this Agreement intend that transfers of Personal Data from the UK to the European Union or from the European Union to the UK, following any exit by the UK from the European Union shall be Restricted Transfers for such time and to such extent that such transfers would be prohibited by UK Data Protection Legislation or EU Data Protection Legislation (as the case may be) in the absence of appropriate safeguards such as the Standard Contractual Clauses to be established under clause 21.4(a) below; and (b) where a transfer of Personal Data from one country to another country is of a type authorised by the Data Protection Legislation in the exporting country for example in the case of transfers from within the European Union to a country orscheme (such as the US Privacy Shield) which is approved by the European Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer for the purposes of this Agreement.

 

Security Incident

means any accidental or unlawful destruction, loss or alteration of Personal Data, or any unauthorised disclosure of or access to Personal Data.

 

Services

means Subscription Services, SMS Services and Additional Services.

 

SMS Services

means the SMS messaging service made available by Maralytics for use by Customers and their Authorised Users from time to time.

 

Standard Contractual Clauses

means: a) the standard contractual clauses for the transfer of Personal Data to Data Processors established in third countries which do not ensure an adequate level of protection as set out in Commission Decision C(2010) 593, as updated, amended, replaced or superseded from time to time by the European Commission which are hereby populated and entered into pursuant to this Agreement; or b) where required from time to time by a Supervisory Authority for use with respect to any Restricted Transfer, any other set of contractual clauses or other similar mechanism approved by such Supervisory Authority or by the Data Protection Legislation for use in respect of such Restricted Transfer, as updated, amended, replaced or superseded from time to time by such Supervisory Authority or the Data Protection Legislation.

 

Standard Establishment

means the standard version or implementation of the Maralytics Application provided by Maralytics.

 

Statement of Works

means the document titled ‘Statement of Works’ in the form of a quotation for works or a similar form of document issued by Maralytics to its Enterprise Customers, the content of which vary from time to time.

 

Subscription Fee

means the then current subscription fee payable by a Customer in respect of a Paid Subscription, at a rate specified at the domain: https://www.Maralytics.com/pricing or in the case of Enterprise Customers, the rate specified in the Rate Sheet, which may vary at any time and from time to time.

 

Subscription Services

means the services provided by Maralytics to its Customers as described in clause 4.

 

Subscription Type

means the type of subscription which a Customer may subscribe to with Maralytics and includes:

(a) Trial Subscription;

(b) all types of Paid Subscription; and

(c) any other subscriptions type which Maralytics may offer at any time and from time to time, and the Subscription Services related to the Subscription Type.

 

Supervisory Authority

means: (a) an independent public authority which is established by a European Member State pursuant to Article 51 of the General Data Protection Regulation; and (b) any similar regulatory authority responsible for the enforcement of the Data Protection Legislation.

 

Support Hours

means the hours in which Maralytics will provide any applicable support services to the Customer, as published on the Maralytics Website or the Customer Installation and updated by Maralytics from time to time.

 

Support Services

means the support services in respect of the use of Maralytics Application as described in clause 10.

 

Tax

means any taxes, rates, levies imposts, duties or other charges assessed or payable to any Government Authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed on or in respect of any of the above.

 

Term

has the meaning given to it in clause 3.

 

Third Party Application

means any product, service, system, application or internet site integrated or interfaced with the Maralytics Application which may be owned or operated by a Third Party Provider which is used by a Customer or its Authorised User in connection with the Maralytics Application.

 

Third Party Provider

means any third party that provides support, technology and/or other products or services that may be used by a Customer or its Authorised User in connection with the Maralytics Application.

 

Trial Subscription

means the limited trial access to the Maralytics Application which Maralytics makes available to Customers free of charge.

 

Unacceptable Content

means any content which, in Maralytics’s reasonable opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct.

 

2.2 Interpretation

 

In this Agreement, unless the subject or context otherwise requires:

  • words importing the singular include the plural and vice versa;

 

  • words importing a gender includes every other gender;

 

(c) a reference to a party or person includes a reference to that party or person, its

successors, substitutes (including, but not limited to, a party or person taking by novation), executors, administrators and assigns;

 

(d) a reference to any thing or matter is a reference to the whole and any part of it;

 

(e) a reference to a group of persons or parties is a reference to any two or more of them jointly and to each of them individually;

 

(f) a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;

 

(g) where any clause contains sub-clauses, paragraphs or sub-paragraphs, each subclause, paragraph and sub-paragraph however called will be read and construed

separately and independently of each other;

 

(h) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding

meaning;

 

(i) a reference to a statute, statutory provision or regulation includes all amendments,

consolidations or replacements thereof;

 

(j) the word ‘person’ includes a corporation, limited liability company, partnership, trust, governmental agency or entity, individual and/or any other entity or organization;

 

(k) where under or pursuant to this Agreement or anything done under this Agreement

the day on or by which any act, matter or thing is to be done is not a Business Day

such act, matter or thing must be done on the immediately succeeding Business Day;

 

(l) a reference to this Agreement or other document includes any variation, novation or replacement of or supplement to any of or supplemental to any of them from time to time;

 

(m) a reference to a document includes any agreement in writing, certificate, notice or

other instruction of any kind;

 

(n) “writing” and related expressions includes all means of reproducing words in a

tangible and permanently visible form or in an electronic or machine readable form;

and

 

(o) headings are inserted for guidance only and do not affect the interpretation of this

Agreement.

 

  1. TERM

 

The term of this Agreement (Term) commences on the Commencement Date and will continue to apply until it is terminated in accordance with clause 15. For the avoidance of doubt, the terms and conditions of this Agreement continue to apply regardless of any changes in the type of subscription which may be varied at any time and from time to time.

 

  1. SUBSCRIPTION SERVICES

 

4.1 Provision of Subscription Services

 

For the duration of the Term, Maralytics grants a non-exclusive, non-transferable (except as

expressly provided in this Agreement), limited licence to the Customer and its Authorised

 

Users to access and use:

(a) the Standard Establishment of the Maralytics Application, but does not include any

customisation beyond the scope of the Standard Establishment;

 

(b) the level of access to the Maralytics Application commensurate with and appropriate for their Subscription Type;

 

(c) the Documentation; and

 

(d) the Support Services,

 

Subject to the terms of use displayed on the Maralytics Website at the time of use and this Agreement.

 

 

4.2 Additional Services

(a) Maralytics may, at the request of a Customer and for an Additional Fee, provide

Additional Services to a Customer. Unless expressly agreed otherwise, any Additional

Services will be provided on the terms and conditions of this Agreement.

 

(b) A Customer wishing to obtain Additional Services must provide a written request to

Maralytics no later than fifteen (15) Business Days before the intended commencement date of the Additional Services.

 

(c) If a Customer’s request for Additional Services is accepted, Maralytics will endeavour to provide the Customers with a notice containing a schedule of the Additional Fee (Fee Schedule) before the commencement of the Additional Services.

 

(d) A Customer is taken to have accepted the Fee Schedule if the Additional Services have already commenced at the request of the Customer or the Fee Schedule is not

disputed within three (3) Business Days of receipt.

 

(e) Additional Services are offered by Maralytics at its sole and absolute discretion and

nothing in this clause 4.2 obliges Maralytics to provide any Additional Services requested by a Customer.

 

  1. SUBSCRIPTION TYPE

 

5.1 Trial Subscription

A Customer who registers with Maralytics on the Maralytics Website or via an authorised application marketplace will first be automatically subscribed for the Trial Subscription. A Customer on a Trial Subscription is provided with limited access to the Maralytics Application, designed to provide it with an opportunity to trial the features before subscribing.

5.2 Paid Subscription

A Customer who wishes to gain access to more features of the Maralytics Application or add

additional Authorised Users may choose to subscribe to one or more of the Paid Subscription

levels on the Maralytics Website and may add additional Paid Subscriptions at any time and from time to time. The Subscription Fee and the applicable features of Subscription Services are published and made available on the Maralytics Website. Access to and features available on the Maralytics Application may differ between various Paid Subscription levels.

 

5.3 Enterprise Customers

A Customer who wishes to subscribe as an Enterprise Customer will be issued with a

Statement of Works, which contains the Subscription Fee and the features of the Subscription

Services.

 

5.4 Changing Subscription Types and Authorised Users

(a) A Customer may:

(i) subscribe for any Subscription Type and may subscribe for more than one

Subscription Types at any one time; and

(ii) request to change its Subscription Type at any time and from time to time by making a request via the Maralytics Application (for Non-Enterprise Customers only) or by the Maralytics Application, email or online help(for Enterprise Customers only) (Notice of Change), subject to this clause 5.4.

 

(b) Where Customer makes changes in respect of a Monthly Subscription after the expiry of the first month’s subscription and:

(i) downgrades to a subscription with decreased available features, the

Customer will be charged the prevailing Subscription Fee for the downgraded

product at the prevailing Rate Sheet for the entire applicable calendar month;

(ii) upgrades to a subscription with increased available features, the Customer

will be charged the prevailing Subscription Fee for the upgraded product at

the prevailing Rate Sheet for the entire applicable calendar month;

(iii) reduces or increases the number of Authorised Users, the Customer will be

charged a Subscription Fee based on all Authorised Users that have used the

Customer Installation at any time during the current applicable calendar

month.

Where a Customer makes changes in respect of a Monthly Subscription during the first month’s subscription, then the Customer will be charged for product downgrades and upgrades and increased and decreased Authorised User numbers on a pro-rata basis based on the remaining days in that calendar month.

 

(c) Where a Customer makes changes in respect of an Annual Subscription and:

(i) reduces the number of Authorised Users, the changes will take effect on and

from the expiration of the then current Annual Subscription Period;

(ii) increases the number of Authorised Users, the Customer must either:

(A) pay a pro-rata proportion of the annual Subscription Fee per

additional permitted Authorised User calculated as the annual

Subscription Fee multiplied by the number of whole months

(including the month during which the increase was made) remaining

in the Annual Subscription Period divided by 12; or

(B) subscribe for an additional Monthly Subscription in respect of the

additional permitted Authorised Users at the prevailing Rate Sheet.

 

(d) On the expiry of the Annual Subscription Period, Customers may renew their

subscription for a further Annual Subscription Period at the prevailing Rate Sheet. If

the Customer fails to renew an Annual Subscription, their subscription will

automatically convert to a Monthly Subscription following the expiry of the Annual

Subscription Period.

 

(e) Where a Customer changes from a Monthly Subscription to an Annual Subscription,

the change will take effect from the first day of the then current month.

 

(f) Where a Customer changes from an Annual Subscription to a Monthly Subscription,

the change will take effect at the end of the then current Annual Subscription Period.

 

5.5 Features may vary

Maralytics may, at any time and from time to time, amend, vary or remove any of the features,

functions and other benefits made available to the Customers and its Authorised Users in

respect of the Maralytics Application as it sees fit without any prior notice to the Customers.

 

5.6 Maralytics retains sole discretion

The Customer agrees and acknowledges that Maralytics retains the sole and absolute discretion regarding any of the features, functions and other benefits made available to the Customers and its Authorised Users in respect of the Maralytics Application. Nothing in this Agreement requires Maralytics to provide or maintain any features, functions or other benefits in respect of the Maralytics Application. The Customer also acknowledges and agrees that nothing in this Agreement limits Maralytics’s right to discontinue or alter any such features, functions or other benefits at any time and from time to time.

 

5.7 Additional features

A Customer with a Paid Subscription may request additional features or functions, support,

updates or other services to be provided by Maralytics as an Additional Service and these

Additional Services will be provided pursuant to clause 4.2. Maralytics may publish or otherwise make available the additional features or functions, support, updates or other services on the Maralytics Website, which may be varied from time to time.

 

  1. THIRD PARTY APPLICATIONS

The Customer acknowledges and agrees that the Maralytics Application may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used when utilising certain features or functionality in the Maralytics Application. Where such Third Party Applications or Third Party Providers are used, the Customer acknowledges and agrees that:

(a) Maralytics makes no representations or warranties relating to the Third Party Providers or the Third Party Applications;

 

(b) the Third Party Providers and Maralytics are not partners, joint venturers,

representatives or agents of each other;

 

(c) the inclusion of any link to or integration with any Third Party Application does not

constitute or imply any affiliation with, or sponsorship, endorsement or approval by

Maralytics of the Third Party Provider or Third Party Application;

 

(d) the Customer agrees to and must abide by, and must ensure that each Authorised

User agrees to and abides by, any obligations imposed upon it by such Third Party

Provider, and Maralytics may notify the Customer of such obligations;

 

(e) access to Third Party Applications is at the Customer’s risk and Maralytics will not be responsible for any Loss that may result from the Customer’s use of any Third Party

Application, even if the Third Party Application may interface with the Maralytics

Application, or even if Maralytics may have provided installation or integration services with respect to the Third Party Application;

 

(f) the Third Party Providers may have practices, terms and policies, including those

relating to privacy or data security, that are different from those of Maralytics and Maralytics is not responsible for any these practices, terms and policies and specifically disclaims any liability for any of them;

 

(g) Maralytics makes no representations or warranties regarding the Third Party Applications or the Third Party Providers. Without limiting the above, Maralytics does not make any representations or warranties regarding the availability or timing of any availability of any interface between the Maralytics Application and any Third Party Applications;

 

(h) the Customer will maintain a direct, independent contractual relationship with all

Third Party Providers in relation to the Customer’s access to or use of the Third Party

Applications; and

 

(i) Maralytics is not responsible for and has no obligation to provide the Customer with any assistance or support in relation to the functioning or operation of the Third Party

Applications.

 

  1. AUTHENTICATION CREDENTIALS

 

7.1 Provision of Authentication Credentials

 

Upon request from the Customer from time to time, Maralytics will provide the Customer with

Authentication Credentials in order for the Authorised Users to access the Maralytics Application.

 

7.2 Special Requirements for Authentication Credentials in use by customer infrastructure

If the Customer implements an Authentication Credential in a system or Third Party

Application with the result that such a system is an Authorised User (Authorised System), the

Customer will implement the Authorised System such that any person accessing the Maralytics

Application via the Authorised System can be accurately identified to Maralytics upon its request, and the date, time and nature of such person’s access to the Maralytics Application via the Authorised System can likewise be accurately identified to Maralytics.

 

7.3 Obligations of the Customer in relation to the Authentication Credentials

The Customer must:

(a) ensure that each Authentication Credential is securely maintained and used only by

the Authorised User to whom the Authentication Credential has been issued;

 

(b) comply with any policies, guidelines or other requirements issued by Maralytics from time to time in any way relating to Authentication Credentials;

(c) immediately notify Maralytics and take immediate steps to disable an issued

Authentication Credential if:

(i) an Authorised User ceases to be employed by, contracted to, or otherwise

authorised to use the Maralytics Application by the Customer;

(ii) an Authentication Credential is lost, stolen, missing or is otherwise

compromised; or

(iii) the Customer becomes aware of any breach of the provisions of this

Agreement by the Authorised User, in which case the Authentication

Credentials will be suspended until such time the breach is remedied to

Maralytics’s satisfaction;

(d) not transfer or allow to be transferred Authentication Credentials between or

amongst Authorised Users or other individuals or systems and take all reasonable

steps to ensure that Authentication Credentials are not transferred;

(e) conduct regular checks to ensure the integrity of all issued Authentication Credentials, including regularly cross checking its list of Authorised Users with such list maintained by Maralytics and provided to the Customer; and

(f) periodically reset Authentication Credentials as and to the extent required by Maralytics from time to time.

 

7.4 Management of Authentication Credentials

Maralytics reserves the right at any time and from time to time to change and/or revoke any

Authentication Credentials and will provide the Customer with a written notice of the change

or revocation.

 

  1. CUSTOMER RESPONSIBILITIES AND OBLIGATIONS

 

8.1 Customer responsibilities

 

The Customer will be responsible for:

(a) uploading all Customer Data into the Maralytics Application and ensuring all Customer Data is true and accurate;

 

(b) the day to day use of the Maralytics Application;

 

(c) obtaining all consents, permits or approvals necessary to upload the Customer Data

into the Maralytics Application, store the Customer Data on the Maralytics Infrastructure and otherwise use the Maralytics Application;

 

(d) ensuring that the use of the Maralytics Application by the Customer and each of its

Authorised Users and the uploading and storage of the Customer Data complies with

all applicable laws, regulations or codes of conduct;

 

(e) satisfying itself that the Maralytics Application is compatible with its own hardware,

software and internet and network capabilities and maintaining all hardware,

software, Third Party Applications and other technology necessary to be able to

access and use the Maralytics Application;

 

(f) ensuring that it maintains back up or alternate systems for use if the Maralytics

Application is unavailable or is otherwise unable to be used by the Customer;

 

(g) ensuring no Unacceptable Content is uploaded to the Maralytics Application or stored in the Maralytics Infrastructure; and

 

(h) any acts or omissions committed by the Authorised Users or the other employees,

officers, contractors or representatives of the Customer or any of its related parties

in relation to the Maralytics Application.

 

8.2 Customer obligations

8.2.1 The Customer must:

(a) use the Maralytics Application only for its internal business purposes;

 

(b) only use and copy the Documentation to the extent necessary to use the Maralytics

Application;

 

(c) comply with and ensure that its Authorised Users comply with the terms and

conditions of this Agreement and any policies regarding the use of the Maralytics

Application which Maralytics may notify of its Customer from time to time (notification

of which may be made available or accessible on the Maralytics Website or through the Customer Installation), including without limitation, Maralytics’s Fair Use Policy; and

 

(d) ensure that each Authorised User is either an employee or contractor of the Customer who has all authority, permissions or other approvals required to be able to access and use the Maralytics Application.

 

8.2.2 The Customer must not, cannot and will not:

(a) use the Maralytics Application or any other Intellectual Property in any way or for any purpose other than as contemplated by this Agreement;

 

(b) use any Intellectual Property or Confidential Information of Maralytics or any of its

subsidiaries or other affiliates, or otherwise breach any other legal obligation, to build

a competitive product or service or build a product or service using similar ideas,

features, functions or graphics of the Maralytics Application;

 

(c) permit any person other than the Authorised Users to use the Maralytics Application and ensure that those Authorised Users, in using the Maralytics Application, comply with the terms and conditions of this Agreement as if they were the Customer;

 

(d) modify, adapt, translate, reverse engineer, decompile, disassemble or copy all or any part of the Maralytics Application;

 

(e) attempt to circumvent or break any encryption, decryption or other security device

or technological protection measure contained in the Maralytics Application;

 

(f) send or store material containing software viruses, worms, trojan horses or other

harmful computer code, files, scripts, agents or programs;

 

(g) interfere with or disrupt the integrity or performance of the Maralytics Application or the data contained therein;

(h) attempt to gain unauthorised access to the Maralytics Application, Maralytics Infrastructure or its related systems or networks;

 

(i) create internet “links” to or from the Maralytics Application, or “frame” or “mirror” any content forming part of the Maralytics Application other than on the Customer’s own intranets or otherwise for its own internal business purposes;

 

(j) distribute any part of the Maralytics Application for commercial purposes or otherwise sublicence or resell the Maralytics Application;

 

(k) create derivative works from all or any part of the Maralytics Application;

 

(l) transfer, assign, rent, lease, lend, sell or dispose of all or any part of the Maralytics

Application or any compilation derived from the Maralytics Application or otherwise

commercially exploit or make the Maralytics Application;

 

(m) make any part of the Maralytics Application publicly available in violation of this

Agreement or other legal obligation; or

 

(n) attempt or allow its Authorised Users or any other third parties to do or attempt to

do any of the above.

 

8.3 Access to Customer’s system

The Customer acknowledges and agrees that, throughout the Term, the Customer grants

Maralytics the right and permission to access (including by remote access) the Customer

Installation and the computer systems of the Customer used to access the Customer

Installation, including but not limited to, to provide support services to the Customer and to

monitor the use of the Maralytics Application by the Customer. The Customer must do all things reasonably requested by Maralytics to ensure Maralytics has such the required access during the Term.

 

  1. FAIR USE POLICY

 

9.1 Unreasonable Use

 

For the purpose of this clause 9, Unreasonable Use includes, without limitation, the following:

 (i) for any activity that breaches any law and regulations or in a manner other

than those intended for the Subscription Services;

(ii) to transmit, publish or make available material that is offensive, abusive,

indecent, pornographic or confidential (or promote others to engage in such

acts);

(iii) in a way that infringes the rights of other persons, including to defame,

harass, injure, menace or abuse any person or property or violate any person’s privacy, to infringe any person’s intellectual property rights or incite hatred against any person;

(iv) to send unsolicited data to third parties for any purpose;

(v) in a way that will interfere with, interrupt, manipulate, bypass or degrade the

Maralytics Application, the integrity of the Maralytics Infrastructure or any network

or equipment of another person; and

 

9.2 Policy application

Maralytics’s Fair Use Policy applies to all Customers and all Subscription Types and is intended to ensure that the availability of the Maralytics Application to all Customers and that the Maralytics Application is not subject to an Unreasonable Use. Maralytics reserves the right to vary the terms of the Fair Use Policy at any time and from time to time without notice. The Customer must not engage in any Unreasonable Use of all or any part of the Maralytics Application and must ensure that there is no Unreasonable Use of the Maralytics Application by the Customer.

 

9.3 Failure to comply with Fair Use Policy

The Customer acknowledges and agrees that, if Maralytics, at its sole discretion, determines the Customer’s use of the Maralytics Application is in breach of this Fair Use Policy, Maralytics has the right to, at its sole and absolute discretion, do any of the following:

(a) give a notice or warning requesting the Customer to stop certain activities or conduct or take steps to remedy the breach;

 

(b) immediately suspend or limit the Customer’s access to the Maralytics Application

without notice;

 

(c) terminate this Agreement in accordance with clause 15; and/or

 

(d) charge the Customer an Optional Usage Fee for its use of the SMS Services in

accordance with clause 12.1.

 

  1. SUPPORT

 

10.1 Online Technical Support

 

For the duration of the Term and only for Customers who are eligible for Online Technical

Support, Maralytics will use its best commercial endeavours to provide the Customer and its

Authorised Users with Online Technical Support during the Support Hours.

 

10.2 Support procedures

To be eligible for the Online Technical Support:

(a) the Subscription Type which the Customer currently subscribes for is eligible for

Online Technical Support; and

 

(b) the Customer and its Authorised Users must comply with all support procedures or

directions which Maralytics may have from time to time.

 

10.3 No obligations to provide other services

The Customer acknowledges that the support service described in clause 10.1 is the only

support services Maralytics will provide to the Customer as part of the Subscription Services. The Customer acknowledges that nothing in the Agreement imposes an obligation on Maralytics to develop, release or install for the Customer any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Maralytics Application (Updates), provided however that if Maralytics does develop or release any Updates, a Customer must use the Updates provided.

 

  1. DOCUMENTATION

(a) Maralytics may, at any time and from time to time, amend, vary or update the

Documentation and Maralytics will notify and make the revised Documentation available to the Customers as soon as practicable.

 

(b) When using the Maralytics Application, the Customer agrees that it must refer to the most recent version of the Documentation provided or made available by Maralytics.

 

(c) The Customer also agrees that it must promptly return to Maralytics or destroy any

superseded versions of the Documentation in accordance with Maralytics’s directions or instructions.

 

  1. FEES AND EXPENSES

 

12.1 Fees

For the duration of the Term, any Customer who subscribes for:

(a) a Paid Subscription must pay to or as directed by Maralytics the Subscription Fee

applicable to that Paid Subscription and subject to a minimum Subscription Fee of $10

per Customer Installation per month (£10 for Customers invoiced in pounds sterling);

 

(b) any optional features available on the Maralytics Application must pay to or as directed by Maralytics any Optional Usage Fees which may be applicable; and

 

(c) any Additional Services must pay to or as directed by Maralytics any Additional Fee which may be applicable, and all payments must be made in accordance with clause 12.2.

 

12.2 Payment Facility

Any Customers who wish to subscribe for a Paid Subscription must, before the

commencement of the subscription, provide Maralytics with details of its Payment Facility and

duly authorise Maralytics and Maralytics’s designee (if any) to direct debit the Fees from its Payment Facility in accordance with clause 12.3 below.

 

12.3 Invoices and payment

Where payments are made by a Customer to Maralytics and not through an authorised third

party application marketplace, Maralytics will:

(a) in respect of a Monthly Subscription, at the end of each calendar month, issue the

Customer with an invoice (or valid tax invoice if the Customer is an Australian tax

resident) for the Subscription Fees, Optional Usage Fees and Additional Fees (if

applicable) payable by the Customer (Monthly Invoice) for the preceding month; and

(b) in respect of an Annual Subscription:

(i) on or before the Commencement Date and each anniversary of the

Commencement Date, issue the Customer with an invoice (or valid tax invoice

if Customer is an Australian tax resident) for the Subscription Fees (if

applicable) payable by the Customer (First Annual Invoice) for the following

year; and

(ii) at the end of each calendar month, issue the Customer with an invoice (or

valid tax invoice if Customer is an Australian tax resident) for the Optional

Usage Fees and Additional Fees (if applicable) payable by the Customer

(Second Annual Invoice) for the preceding month; and                 

(c) deduct payment of the amount payable on the Monthly Invoice, First Annual Invoice and/or Second Annual Invoice, as applicable (Invoice, from the nominated Payment Facility at any time within three days of the date of issue of the Invoice.

 

12.4 Failure to pay

 

12.4.1 If a Customer makes payments through the Payment Facility and not an authorised third party application marketplace and any amount cannot be deducted from the Payment Facility at the time specified in clause 12.3 and the Customer fails to rectify any non-payment of

amounts due to Maralytics under this Agreement within 7 days of the payment due date, then

(without prejudice to Maralytics’s other rights):

(a) Maralytics may charge the Customer interest on all outstanding amounts at an interest rate of 1.5% per month, calculated daily, and will accrue from the first day on which such amounts become overdue until the outstanding amount (including all interest) has been paid in full; and

 

(b) Maralytics may issue a notice to the Customer stating that the Invoice is overdue

(Overdue Notice). If Maralytics does not receive payment of the relevant Fees within 3

days from the date of the Overdue Notice, Maralytics may cease to provide the

Subscription Services and any Additional Services and may disable the Customer’s and

any of its Authorised User’s access to the Maralytics Application until such time as the

outstanding amount (together with any interest) is paid in full.

 

12.4.2 Maralytics will not be liable for any Loss suffered by the Customer as a result of Maralytics exercising its rights under this clause 12.4.

 

12.5 Fee changes

Subject to clause 12.6, Maralytics may, at any time and from time to time, change any Feesit may charge its Customers. In doing so, it will:

(a) promptly notify the Customers by notice in writing to the Customer for any change in the Optional Usage Fees, which will be effectively on notification; or

(b) provide the Customers with at least 30 days written notice with respect any changes to the Subscription Fees or any other Fees specified in the Rates Sheet, which will be  effective 30 days from the date of the written notice, and any written notice made pursuant to this clause will be effectively provided if Maralytics publishes in a visible location the changes on the Maralytics Website or the Customer Installation.

 

12.6 Third party fees

Where a Customer registers to use the Maralytics Application through an authorised third party application marketplace and makes payment to or through that third party application

marketplace in respect of its use of the Maralytics Application, variations in the Fees payable will be governed by the terms relating to changes of fees contained in the agreements as between the Customer and the third party application marketplace provider, if any.

 

12.7 Third party agreements

This Agreement governs the relationship between Customers and Maralytics and, for the

avoidance of doubt, does govern or vary any agreement, contract or other arrangement

between the Customers and third parties. The payment of the Subscription Fees or other

amounts to Maralytics is without prejudice to amounts that may otherwise be payable to third

parties, including without limitation fees payable by a Customer in respect of any authorised

third party application marketplace.

  1. ENTERPRISE CUSTOMER SERVICE GUARANTEE

This clause 13 applies only to a Customer that is an Enterprise Customer and not otherwise.

 

13.1 Service availability

Maralytics provides a guarantee to its Enterprise Customers that its Service Availability during

any given month will be at least the Minimum Availability Percentage specified in Schedule 1.

Service Availability is calculated as the total number of minutes in the month, minus the total

number of minutes of planned or unplanned downtime, divided by the total number of

minutes in the month, with the remaining fraction expressed as a percentage.

In the event that Maralytics fails to deliver the Service Availability in accordance with Schedule 1 in any given month, Maralytics shall credit the Enterprise Customer the amounts equivalent to the amounts calculated in accordance with the table below:

 

 

The Customer acknowledges and agrees that the Service Credits provided by Maralytics under

the Clause 13.1 represent a genuine pre-estimate of the loss suffered by the Customer arising

from any Service Availability failure and the Customer has no additional remedy or recourse

by way of damages or any other loss against Maralytics.

 

13.2 Support availability

Maralytics support personnel are available 24 hours a day, 7 days a week, every day of the year, throughout the contract period. Support personnel are available via chat on the Maralytics application or website

 

13.3 Response and Resolution Times

The median response time for support will be maintained at or around 5 minutes. Depending

on the nature of the issue, Maralytics also provides Guaranteed Response and Resolution Times, which may differ depending on the type of incidents and the differing levels of severity.

Guaranteed Response and Resolution Times are specified in Schedule 1.

 

13.4 Notification and escalation procedures

The Customer must notify Maralytics of the issue by contacting support and indicating a severity level for the issue reported. In the event that the issue is not resolved within the Guaranteed Response and Resolution Times, the Customer should immediately notify Maralytics by email at support@Maralytics.com and request an escalation of the matter.

 

13.5 Reporting

In the event any Sev1-3 issues occur during a month, or any Sev4 issues remain unresolved

beyond Guaranteed Response and Resolution Times at the end of a calendar month, Maralytics will provide a detailed report of the incident no later than the 14th day of the following month.

If requested by the Customer, Maralytics will provide a conference bridge dedicated to any

specific incident, where interested parties can track the progress of resolution.

 

  1. UNACCEPTABLE CONTENT

 

14.1 Request to remove content

If Maralytics, in its reasonable opinion, believes that Unacceptable Content has been uploaded

into the Maralytics Application or is being stored on the Maralytics Infrastructure, Maralytics may request the Customer immediately to disable access to and remove the Unacceptable

Content.

 

14.2 Maralytics may remove content

If the Customer does not respond within five (5) days of receiving the request made under

clause 14.1, Maralytics has the right, but is not obliged to, disable access and remove any

Unacceptable Content from the Maralytics Application and/or Maralytics Infrastructure without further notice to the Customer and Maralytics may seek reimbursement from the Customer for any reasonable costs incurred by Maralytics in doing so.

 

14.3 No obligation to monitor

Nothing in this clause 14 imposes an obligation on Maralytics to monitor or screen the Maralytics Application, Maralytics Infrastructure or their contentsfor any Unacceptable Content and Maralytics will not be responsible for any Unacceptable Content uploaded but not removed.

 

  1. TERMINATION

 

15.1 Termination with notice – Enterprise Customer

After the expiration of the Initial Term, an Enterprise Customer may terminate this Agreement

at any time by giving written notice to Maralytics no less than four (4) weeks before the proposed termination date, but not otherwise. Clauses 8, 12, 16, 19, 25, 26, 27, 28, 29, 30.2, 30.3, 30.4, 30.5 and 30.6 herein, as well as any other clauses of the Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreement, shall survive termination or expiry.

 

15.2 Termination with notice – Non-Enterprise Customer

This Agreement will continue to apply until terminated by either the Non-Enterprise Customer

or Maralytics in accordance with this Agreement. The Non-Enterprise Customer may terminate

the Agreements at any time from within the Maralytics Application. To learn how to terminate a Maralytics account, the Customer should contact Maralytics support@maralytics.com