Subscription Agreement

Prospend Pty Ltd ACN 002 087 489 of 'NEXUS BUILDING' UNIT 110 4 COLUMBIA COURT BELLA VISTA NSW 2153 

(the Provider)

Background

1. 1. 1. The Provider wishes to provide to the Customer and its Affiliates, access and usage of the Platform and the Hosted Services under the terms of this Agreement.
      2. The Customer and its Affiliates wishes to access and use the Platform and the Hosted Services in accordance with the terms of this Agreement.

Agreement

Active User means any user that has logged in or has any activity associated with their user id. An activity is defined by the creation, update or deletion of any record through the Platform on their Customer database or file store. 

Access Credentials means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API.

Affiliate means an entity that Controls, is Controlled by, or is under common Control with the relevant entity.

Agreement means this agreement and any policies attached to it, the Order Form and the Documentation, and any amendments to this Agreement from time to time.

API means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer.

Banking as a Service (BaaS) means the service model where the Provider offers banking functionalities from third party banking providers and services through APIs to the Customer. BaaS allows the Customer to develop and deploy financial products and services using the Providers Platform.

Billing Term means the frequency at which the Customer will be invoiced, as per the Order Form.

Breach means any failure by either party to perform or observe any of its obligations under this Agreement, excluding a Material Breach

Business Day means any weekday other than a bank or public holiday in New South Wales, Australia.

Business Hours means the hours of 9.00am to 5.30pm (GMT+10) on a Business Day.

Card Services means the services provided by the Provider to the Customer relating to the Virtual Card.

Charges means, collectively, the following amounts:

1. 1. 1. the Subscription Fees;
      2. Digital Receipt Service Fees;
      3. such other amounts as may be agreed in writing by the parties from time to time; and
      4. amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider’s personnel performing any services in addition to the Hosted Services.

Confidential Information means all information relating to either party, any of their Affiliates, customers, clients, suppliers, distributors or joint venture partners, and/or any of their respective business or financial affairs or interests, including:

1. 1. 1. any information that is specifically designated by any of them as confidential;
      2. any information which, by its nature, may reasonably be regarded as confidential or commonly understood to be sensitive information;
      3. any information relating to any:
         1. 1. 1. agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
               2. customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; 
               3. Intellectual Property Rights 
      4. any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;
      5. it’s the Customer Data.

Control means the legal power to control (directly or indirectly) the management of an entity (and Controlled should be construed accordingly).

Customer Data means all data, works and materials uploaded to or stored on the Platform by the Customer and its Affiliates, or transmitted by the Platform at the instigation of the Customer, or supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform, or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files).

Customer Indemnity Event has the meaning given to it in Clause 20.3.

Customer Personal Data means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement.

Customer Representative means the person or persons identified in the Order Form and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of their appointment.

Data Protection Laws means all applicable Australian Privacy and Data Protection laws.

Digital Receipt Service Fee means the fee payable by the Customer to the Provider for digital receipts, e-claims or e-invoices

Documentation means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer which shall be deemed to form part of this Agreement on acceptance thereof by both parties in writing, including mapping documents accepted and signed by the Customer and the implementation timelines and documentation.

Effective Date means the date of execution of the Order From and therefore this Agreement.

Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected and which could not have been prevented by the affected party taking reasonable steps (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars) and which delays or prevents the performance of their obligations under the Agreement.

Hosted Services means the hosted services as specified in the Order Form, which will be made available by the Provider to the Customer via the internet in accordance with this Agreement.

Hosted Services Defects means any failure or malfunction of the hosted environment

Implementation Fee means the fee as set out in the Order Form and payable by the Customer to the Provider for the Provider’s implementation of the Services.

Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and such Intellectual Property Rights include copyright and related rights, database rights, Confidential Information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).

Material Breach means a breach of any of the provisions of Clauses 14, 15, 16, 18 or 20 of this Agreement.

Maintenance and Support Services means, collectively:

1. 1. 1. the general maintenance of the Platform and Hosted Services, and the application of updates and any major version upgrades of any Platform software; and
      2. support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services.

Minimum Term means the minimum term as set out in Order Form.

Mobile App means the mobile application known as ProSpend that is made available by the Provider through the Google Play Store and the Apple App Store.

Order Form means the order form setting out the key terms and specifications relating to the provision of the Platform and Hosted Services and signed by the parties.

Personal Data means personal data under any of the Data Protection Laws;

Persistently Breaches means 3 consecutive breaches of this Agreement in any 12-month period

Platform means the ProSpend Platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed.

Platform Defect means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

1. 1. 1. any act or omission of the Customer or any User;
      2. any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or any User;
      3. a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
      4. an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Order Form.

Provider Indemnity Event has the meaning given to it in Clause 21.1;

Provider Representative means the person or persons identified as such in the Order Form, and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of their appointment;

Renewal Period means a further period in months, as defined in the Order Form, immediately after the expiry of the Minimum Term or the most recent Renewal Period (as the case may be).

Services means, collectively, all services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement.

Subscription Fees mean the fees payable by the Customer to the Provider for the provision of the Hosted Services.

Subcontractor(s) means third party entity and or its employees that will be engaged to delivery goods or services by the Provider, and will not process any Customer Data or Customer Personal Data.

Subprocessor(s) means third party entity that will be engaged by the Provider who may have access to the production infrastructure and/ or process Customer Data but not Customer Personal Data.

Supported Web Browser means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari or any other web browser that the Provider agrees in writing shall be supported;

Tax Acts means any applicable tax-related legislation in the jurisdiction of the Provider or the Customer.

Tax or Taxation means:

1. 1. 1. (any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax); and
         
         
      2. any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

Term means the term of this Agreement commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2 or 2.3 (as the case may be).

Third Party Integrated Services means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider.

Update means a hotfix, patch or minor version update to any Platform software.

User means an individual that is authorised by the Customer or an Affiliate of the Customer to use the Platform and the Hosted Services and to whom the Customer has (or the Provider has at the Customer’s written request) supplied Access Credentials, and may include the Customer’s employees, consultants, contractors, agents and any third parties nominated by the Customer and with whom the Customer transacts business.

User Interface means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.

Virtual Card means the Provider’s card service module provided in conjunction with Providers BaaS service provider.

2. 

1. This Agreement shall come into force upon the Effective Date.
2. This Agreement shall continue in force for the Minimum Term.
3. At the end of the Minimum Term and thereafter at the end of each Renewal Period, this Agreement will automatically renew for a further Renewal Period until or unless this Agreement is terminated in accordance with the provisions of this Agreement.

1. The Provider shall implement the Services for the Customer in accordance with its established process and procedures, and the Customer shall adopt and comply with the implementation process and procedures prescribed by the Provider.
2. In consideration for the implementation of the Services, the Customer shall pay the Implementation Fee to the Provider. On signature of this Agreement, the Provider will issue an invoice for the Implementation Fee which must be paid by the Customer by the due date for payment noted on that invoice. The Provider is not obliged to implement the Services, until the Customer has paid the Implementation Fee in full, in cleared funds. 
3. The Customer may, at any time, make a written request to the Provider for an amendment or enhancement to the Services.  If the Provider accepts that request, it will liaise with the Customer to manage the implementation of that request.

1. 1. 1. The Provider shall provide, or shall ensure that the Platform will provide, to the Customer upon the completion of its implementation of the Services, the Access Credentials necessary to enable the Customer to access and use the Hosted Services and the Platform.
      2. The Provider hereby grants to the Customer and its Affiliates, non-exclusive licence to use the Hosted Services by means of the User Interface and the API for the internal business purposes of the Customer in accordance with the Documentation during the Term.
      3. The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
         1. 1. 1. the User Interface may only be used through a Supported Web Browser or the Mobile App;
               2. the User Interface may only be used by the Users;
               3. the API may only be used by an application or applications approved by the Provider in writing and controlled by the Customer.
      4. Except to the extent expressly permitted in this Agreement, agreed otherwise by the Parties in writing or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
         1. 1. 1. the Customer must not sub-license its right to access and use the Hosted Services;
               2. the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
               3. the Customer must not use the Hosted Services to provide services to third parties;
               4. the Customer must not republish or redistribute any content or material from the Hosted Services;
               5. the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
               6. the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
      5. The Customer shall implement and maintain reasonable security measures as specified by the Provider relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials, including by subscribing to a security and compliance automation platform reasonably acceptable to the Provider.
      6. The parties acknowledge and agree that the maintenance policy shall govern the availability of the Hosted Services.
      7. The Customer must comply with and ensure that all Users comply with the Provider’s usage limits when defined in the Order Form or as below in 4.8 and 4.9.
      8. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform, or impair the availability or accessibility of the Hosted Services.
      9. The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
      10. The Customer must not use the Hosted Services:
          1. 1. 1. in any way that is unlawful, illegal, fraudulent or in the opinion of the Provider (acting reasonably) is likely to cause loss, injury or damage; or
                2. in connection with any unlawful, illegal, fraudulent purpose  or activity.
      11. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

1. The Provider shall provide the Maintenance and Support Services to the Customer during the Term with reasonable skill and care.
2. The Provider shall provide the Maintenance and Support Services in accordance with Provider’s Maintenance and Support Services policy.
3. From time to time, the Provider may, at its option, issue a new release of the Platform software and new releases may include without limitation, new versions of the software which correct defects in the software which the Provider may elect to release as enhanced versions of the software, which may include new functionality.  From time to time, the Provider may release certain functionality within the Platform that is in a pre-release state, known as MVP, ALPHA or BETA.  The Customer acknowledges and agrees that pre-released features are still under development and may contain bugs or suffer disruptions and/or not operate as intended and designated and are outside the scope of the SLA in Maintenance and Support Policy.

1. 1. 1. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
         1. 1. 1. co-operation, support and advice;
               2. information and documentation; and
               3. governmental, legal and regulatory licences, consents and permits,
         
         as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.
         
         
      2. The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may reasonably be required by the Provider to enable the Provider to perform its obligations under this Agreement. 

1. The Customer shall ensure that the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with, the Hosted Services comply, and continue to comply during the Term, with the customer system requirements set out in the Order Form, subject to any changes agreed in writing by the Provider.

1. The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its service providers including but not limited to hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement.
2. The Customer warrants to the Provider, to the maximum extent of their knowledge and based on reasonable enquiries undertaken that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
3. We may also collect and use information in the Platform in an aggregated and anonymous basis for any purposes. 

1. 1. 1. Provided that the Customer has met such requirements as the relevant third party may set for the supply of its Third Party Integrated Services, the Provider may integrate the Hosted Services with any Third Party Services at any time.
      2. The customer acknowledges that Third Party Integrated Services may only be activated with respect to the Hosted Services account of the Customer by:
         1. 1. 1. the Customer; or
               2. the Provider with the prior written agreement of the Customer.
      3. The Provider shall use reasonable endeavours to maintain any integration with Third Party Integrated Services that have been activated with respect to the Hosted Services account of the Customer. Subject to this, the Provider may remove, suspend, deactivate or limit any Third Party Integrated Services at any time in its sole discretion due to any breach of this Agreement or the separate agreement with the third party as contemplated in Clause 9.4.
      4. The supply of Third Party Integrated Services shall be under the relevant third parties’ terms and conditions as accepted by the Customer in writing. The Provider does not contract to supply the Third Party Integrated Services and is not a party to any contract for, or otherwise responsible in any way for, the provision of any Third Party Integrated Services and accordingly, the Customer acknowledges and agrees that it shall have no claim against the Provider for any breach, fault or failure of the Third Party Integrated Services. The Customer further acknowledges and understands that fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Integrated Services.
      5. The Customer acknowledges and agrees that:
         1. 1. 1. the activation of Third Party Integrated Services with respect to the Hosted Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted Services to the relevant Third Party Integrated Services and vice versa;
               2. the Provider has no control over, or responsibility for, any disclosure, modification, processing, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third Party Integrated Services;
               3. the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and use of Customer Personal Data by, a provider of Third Party Integrated Services is lawful; and
               4. the Customer shall ensure that the transfer of Customer Data to a provider of Third Party Services does not infringe any person’s Intellectual Property Rights or other legal rights and will not put the Provider in breach of any applicable laws.
      6. Additional Charges may be payable by the Customer to the Provider in respect of the activation and/or use of a Third Party Integrated Services, as set out in Order Form.
      7. Subject to Clause 21.1, the Provider:
         1. 1. 1. gives no guarantees, warranties or representations in respect of any Third Party Integrated Services; and
               2. shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Integrated Services or any provider of Third Party Integrated Services.

1. The parties acknowledge and agree that the use of the Mobile App, the parties’' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to the terms and conditions set out in this Agreement (amended as required by the context).

1. The Customer acknowledges and agrees that the Provider holds the exclusive right, title and interest in and to all of the Intellectual Property Rights relating to the Platform, the Hosted Services and/or the name “ProSpend”, including any Intellectual Property Rights that may arise out of the performance of any of the Services by the Provider.
2. The Customer will do all things necessary to protect the Intellectual Property Rights of the Provider and upon the Provider’s request, shall execute any documents confirming the Provider’s ownership of such Intellectual Property Rights and otherwise required to protect the Provider’s ownership of its Intellectual Property Rights.
3. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider unless expressly provided for under this Agreement or otherwise agreed by the parties in writing.
4. The Customer shall not, directly or indirectly, copy, reverse engineer, disassemble, reproduce, duplicate, imitate, or otherwise develop products similar to the Platform and/or the Hosted Services.  In addition, the Customer shall not allow, permit, assist, enable and/or encourage any third party to do so.

1. 1. 1. The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in this Agreement will be given by a Provider Representative to a Customer Representative, and the Customer:
         1. 1. 1. may treat all such instructions as the fully authorised instructions of the Provider; and
               2. must not comply with any other instructions in relation to that subject matter.
      2. The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in this Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:
         1. 1. 1. may treat all such instructions as the fully authorised instructions of the Customer; and
               2. must not comply with any other instructions in relation to that subject matter.

1. The parties shall hold management meetings at each party’s offices, by telephone conference or using internet-based conferencing facilities at the reasonable request of either party.
2. A party requesting a management meeting shall give to the other party at least 10 Business Days’ written notice of the meeting.
3. Wherever necessary to enable the efficient conduct of business, the Provider shall be represented at management meetings by at least 1 Provider Representative and the Customer shall be represented at management meetings by at least 1 Customer Representative.

1. 1. 1. The Customer shall pay the Charges to the Provider in accordance with clause 15 of this Agreement.
      2. The Provider will start charging the Subscription Fees from the Billing Start Date, as per the Order Form. Each billing month commences at the start of the first day of that month to the end of the last day in that month.
      3. The minimum monthly Subscription Fee includes the count of users and/or invoices as noted in the Order Form, and any usage over that minimum amount will be charged at a unit price. For purposes of determining the Subscription Fee, an active user is any user that has logged in or that has any activity associated with their user ID, including the creation, update or deletion of a record in the Customer’s database or file store.
      4. The minimum monthly Digital Receipt Service Fee includes the count of digital receipts, e-invoices and e-claims as noted in the Order Form, and any usage over that minimum amount will be charged at the unit price. For purposes of determining the Digital Receipt Service Fee, an invoice is counted on receipt to an invoice email address and subsequent store by receipt ID of a PDF file or image.
      5. Should Billing Term be 12 Months, Annual, then the Provider will reconcile the Customer’s account every 12 months. If that reconciliation shows:
         1. 1. 1. Usage over the paid amount, then the Provider will issue an invoice for the additional usage at the annual plan rate less 15% for payment within 7 days; and
               2. Usage under the paid amount, then the Provider will credit the Customer’s account with an amount not exceeding 20% of the paid annual plan (excluding any applicable Taxes) for use towards the Customer’s following Renewal Period.
      6. All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable Taxes, which will be added to those amounts and payable by the Customer to the Provider at the same time and in the same manner as the amount on which such Tax is levied. 
      7. Subject to clause 14.3, the Subscription Fee will not be adjusted during the first 12 months of this Agreement and the subscription Fee during any Renewal Period will be the same as that during the immediately prior term, provided that the Provider may at any time after the first anniversary of the Commencement Date vary any element of the Charges by giving to the Customer not less than 30 days written notice of an increase.  After receipt of such notice, the Customer may terminate the Agreement by giving ProSpend not less than 60 days’ written notice
      8. Any breach of this Clause 14 shall be deemed to constitute a material breach of this Agreement

1. 1. 1. For monthly subscriptions:
         1. 1. 1. The Provider shall issue invoices for the Charges to the Customer within 7 Business Day after each calendar month for the Services provided by the Provider during the preceding calendar month; and
               2. The Customer must pay the invoices for those Charges to the Provider, without deduction or set-off, within 14 days after the date of each invoice.
      2. For annual subscriptions:
         1. 1. 1. The Provider shall issue invoices for the Charges 12 months in advance; and
               2. The Customer must pay the invoices for those Charges to the Provider, without deduction or set-off, within 7 days after the date of each invoice.
      3. The Customer must pay the Charges by using such payment details as are notified by the Provider to the Customer from time to time.
      4. Without prejudice to the Provider’s other rights under this Agreement or at law, if the Customer does not pay any amount properly due to the Provider under this Agreement within 30 days after the date of the applicable invoice, the Provider may, in its sole discretion, charge the Customer interest on the overdue amount at the rate of 6% per annum which interest will accrue daily from and including the date on which such payment was due until and including the date of actual payment and be compounded at the end of each calendar month.
      5. Without prejudice to the Provider’s other rights under this Agreement or at law, if the Customer fails to pay any amount properly due to the Provider under this Agreement within 7 days after the date of the applicable invoice, the Provider may in its sole discretion, suspend the Customer’s access to the Platform until such time as all amounts owing to the Provider are paid, in full, to the Provider.
      6. Any breach of this Clause 15 shall be deemed to constitute a material breach of this Agreement.

1. 1. 1. The parties must:
         1. 1. 1. keep all Confidential Information received from or relating to the other party strictly confidential;
               2. not disclose the Confidential Information to any person without the disclosing party’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in this Agreement;
               3. use the same degree of care to protect the confidentiality of the Confidential Information of the other party as it uses to protect its own Confidential Information of a similar nature, being at least a reasonable degree of care;
               4. act in good faith always in relation to the other party’s Confidential Information; and
               5. not use any of the other party’s Confidential Information for any purpose other than for the performance of its obligations under this Agreement.
      2. Despite clause 16.1, a party’s Confidential Information may be disclosed by the other Affiliates to that other Affiliates officers, employees, professional advisers, insurers, agents and subcontractors who need to access the Confidential Information that is disclosed for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
      3. No obligations are imposed by this Clause 16 with respect to a party’s Confidential Information if that Confidential Information:
         1. 1. 1. is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality; or
               2. is or becomes publicly known through no act or default of the other party.
      4. The restrictions in this Clause 16 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
      5. Upon termination of this Agreement, each party must immediately cease to use the other party’s Confidential Information.
      6. The Customer is responsible for exporting its own data from the Platform before the date of effective termination of an Agreement. Following termination of the Agreement, the Customer acknowledges and accepts that:
         1. 1. 1. the Provider can retain the Customer’s data for up to 30 days after termination of the Agreement for export, back-up and auditing purposes; and
               2. if requested to do so by the Customer, the Provider will irreversibly delete from its media and computer systems, including from the Platform, all of the Customer’s data within a time period reasonably determined by the Provider in its sole discretion and the Provider shall confirm in writing to the Customer when such deletion is completed’’.
      7. The Customer shall promptly return all hard copies and/or delete from its media and computer systems all Confidential Information pertaining to the Provider in its possession, if any, and confirm in writing to the Provider when it has done so.
      8. The provisions of this Clause 16 shall continue in force indefinitely following the termination of this Agreement.
      9. Any breach of this Clause 16 shall be deemed to constitute a material breach of this Agreement.

1. Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data. The Provider will only collect, share and process Customer Data and Customer Personal Data as per Privacy Policy.
2. The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
3. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

1. 1. 1. Subject to any prior disclosure, to the maximum extent of the Provider’s knowledge and provided reasonable enquiries are made, the Provider warrants to the Customer that:
         1. 1. 1. the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
               2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and
               3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
      2. The Provider warrants to the Customer that after its implementation of the  Services has been completed:
         1. 1. 1. the Platform and Hosted Services will conform in all material respects with the Order Form;
               2. the Hosted Services will be free from Hosted Services Defects; and
               3. the Platform will incorporate security features reflecting the requirements of good industry practice.
                  1. These include but are not limited to the following:
                     1. Data Encryption - encryption mechanisms to protect data both at rest and in transit, using industry-standard encryption algorithms and protocols.
                     2. Access Controls - access controls that ensure that only authorised users have access to sensitive data.
                     3. Data Integrity -  mechanisms such as checksums, digital signatures, and integrity checks to detect and prevent unauthorised modifications or tampering.
                     4. Development - code reviews and coding practices to identify and address potential security vulnerabilities.
                     5. Incident Management - incident response procedures, continuous monitoring, and logging mechanisms to detect and respond to performance and security incidents in a timely manner.
                     6. Backup and Recovery - regular data backup procedures and disaster recovery plans to ensure data availability and resilience in the event of data loss or system failures.
                     7. Vendor Management - due diligence of third-party vendors and service providers to ensure they adhere to industry best practices and security standards.
                     8. Compliance - compliance with relevant data protection regulations, and other applicable data privacy and security laws.
                     9. Internal Processes - regular security training and awareness programs for employees to educate them about data security best practices, social engineering threats, and the importance of safeguarding sensitive information.
                     10. Audits - regular security audits and assessments to evaluate the effectiveness of existing security controls, identify potential vulnerabilities and address gaps in security posture.
      3. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under Australian law.
      4. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in Australia and under Australian law.
      5. If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
         1. 1. 1. modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
               2. procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
      6. The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
      7. All the parties’' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
      8. Any breach of this Clause 18 shall be deemed to constitute a material breach of this Agreement.

1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
3. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

1. 1. 1. The Provider shall indemnify and shall keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any material breach by the Provider of a substantive provision of this Agreement (Provider Indemnity Event).
         
         
      2. The Customer must:
         
         1. 1. 1. upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
               2. provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
               3. allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
               4. not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
         
         and the Provider’s obligation to indemnify the Customer under Clause 20.1 shall not apply unless the Customer complies with the requirements of this Clause 20.2.
         
         
      3. The Customer shall indemnify and shall keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (Customer Indemnity Event).
         
         
      4. The Provider must:
         1. 1. 1. upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer, as soon as reasonably practicable;
               2. provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
               3. allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
               4. not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,
         
         and the Customer’s obligation to indemnify the Provider under Clause 20.3 shall not apply unless the Provider complies with the requirements of this Clause 20.4.
         
         
      5. The indemnity protection set out in this Clause 20 shall be subject to the limitations and exclusions of liability set out in this Agreement except as limited by any relevant laws (including Australian Consumer Law).
      6. Any breach of this Clause 20 shall be deemed to constitute a material breach of this Agreement.

1. 1. 1. Nothing in this Agreement will:
         1. 1. 1. limit or exclude any liability for death or personal injury resulting from negligence;
               2. limit or exclude any liability for fraud or fraudulent misrepresentation or wilful misconduct; or
               3. limit any liabilities in any way that is not permitted under applicable law; or
               4. exclude any liabilities that may not be excluded under applicable law.
      2. The limitations and exclusions of liability set out in this Clause 21 and elsewhere in this Agreement: 
         1. 1. 1. are subject to Clause 21.1; and
               2. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
      3. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
      4. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
      5. Neither party shall be liable to the other party in respect of any loss of revenue or income.
      6. Neither party shall be liable to the other party in respect of any loss of use or production.
      7. Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
      8. The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
      9. Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
      10. The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the greater of:
          1. 1. 1. AUD$500,000; and
                2. the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.

22. Virtual Card and Card Services

1. 1. 1. If the Customer elects to subscribe for the Virtual Card and the Card Services as noted on the Order Form, the provisions of this clause 23 shall apply.
      2. In providing the Card Services, the Provider will connect with BaaS provider, a third party software product, through the account integration feature.
      3. To use the Card Services, the Customer must have an active business account with BaaS provider.
      4. The supply of BaaS products shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the BaaS products and is not a party to any contract for, or otherwise responsible in respect for, the provision of any of BaaS providers products. Fees may be payable by the Customer to the relevant third party in respect of the use of BaaS products. The Customer acknowledges and agrees to review and be bound by the terms of use and privacy policy of BaaS in connection with its account.
      5. The Customer is solely responsible for:
         1. 1. 1. registering the Customer with BaaS for a business account through the Provider’s integration set-up function and for keeping that account active;
               2. ensuring that its BaaS account is up to date and accurate;
               3. paying any fees or charges payable that arise from the Customer’s usage of the Platform unless agreed otherwise in writing by the Provider;
               4. ensuring that it has adequate fraud and unauthorised transaction monitoring systems;
               5. ensuring it has (and implements) adequate expensing and unauthorised usage policies within its organisation. BaaS and the Provider shall not be responsible for any loss the Customer may suffer because of an unauthorised, mistaken or fraudulent transaction. The Customer agrees to indemnify BaaS and the Provider for any loss or claim resulting from any unauthorised, mistaken or fraudulent transaction, by the Customer.
               6. if you are concerned about a transaction, it is your obligation to use the dispute process in ProSpend.
      6. The Customer grants the Provider authorisation to access the Customer’s BaaS account in accordance with the rules for doing so prescribed by BaaS. The Customer must cooperate with the Provider and provide any information that the Provider or BaaS may request to enable the Provider to access the Customer’s BaaS account.
      7. The Provider undertakes that it will only access and use the Customer’s BaaS account to provide the Card Services and the Customer expressly consents to the Provider accessing and using the Customer’s BaaS account for this purpose.
      8. The Provider may retain records of the information accessed and used in accordance with this clause 22 and the Customer expressly consents to the Provider’s retention of these records.
      9. If at any time the Provider's access to the Customer’s BaaS account is limited or denied, then the Customer acknowledges and agrees that the Provider may not be able to provide some or all of the Card Services.
      10. The Provider gives no guarantees, warranties or representations in respect of any BaaS products and the Customer indemnifies and holds the Provider harmless, and expressly releases the Provider from any and all liability arising from the Provider’s use of, and/or connection to the BaaS Product including in respect of any loss or damage that may be caused by BaaS products or any of the Provider’s or any other third party integration products.
      11. Notwithstanding the presence of any BaaS products, particular BaaS products shall only be activated by:
          1. 1. 1. The Customer; or
                2. The Provider with the Customer’s prior written agreement.
      12. The Provider shall use reasonable endeavours to maintain any integration with BaaS products that have been activated by the Customer and the Provider may remove, suspend, deactivate or limit any BaaS products at any time in its sole discretion due to any breaches of the terms of this Agreement.
      13. The Customer acknowledges and agrees that:
          1. 1. 1. the activation of BaaS products with respect to the Customer’s account may result in the transfer of the Customer’s Data and/or the Customer’s Personal Data from the Customer’s account to the relevant BaaS products and vice versa;
                2. the Provider has no control over, or responsibility for, any disclosure, modification, deletion or other use of the Customer’s Data and/or the Customer’s Personal Data by any provider of BaaS products;
                3. the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of the Customer’s Personal Data to, and use of the Customer’s Personal Data by, a provider of BaaS products is lawful; and 
                4. the Customer shall ensure that the transfer of the Customer’s Data to a provider of BaaS products does not infringe any person's Intellectual Property Rights or other legal rights and will not put the Provider in breach of any applicable laws.
      14. In connection with its use of its account, or during its interactions with the Provider, another user or a third party in connection with the Services, the Customer warrants and agrees that it will not:
          1. 1. 1. breach this Agreement, or any other Agreement that it has entered into with the Provider;
                2. refuse to provide any information requested for the Provider to comply with AML/CTF Rules prior to any Services being provided and at any other time requested by the Provider;
                3. control an accountant that is linked to another account that has engaged in any activity that breaches this Agreement;
                4. use the Services in a manner that results in or may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties and other liability to us, another user, a third party or the Customer;
                5. use the Customer’s account or the Services in a manner that credit card provider reasonably believes to be an abuse of the credit card system or a violation of credit card association rules;
                6. fraudulently use the Customer’s Virtual Card or account, or another user’s Virtual Card or account, including but not limited to circumstances where a user misappropriates funds.

1. 1. 1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.
      2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
         1. 1. 1. promptly notify the other; and
               2. inform the other of the period for which it is estimated that such failure or delay will continue.
      3. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

1. 1. 1. Before the first anniversary of the Effective Date, the Customer may terminate this Agreement by giving the Provider not less than 60 days written notice to that effect, expiring at the end of any calendar month, provided that the Customer shall remain liable to pay all Charges payable under this Agreement for the first 12 calendar months. 
      2. After the first anniversary, the Customer may terminate this Agreement by giving the Provider not less than 60 days written notice to that effect, expiring at the end of any calendar month.
      3. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
         1. 1. 1. the other party commits any material breach of this Agreement, and the breach is not remediable;
               2. the other party commits a breach or material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
               3. the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
      4. Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
         1. 1. 1. the other party:
                  1. 1. 1. is dissolved;
                        2. ceases to conduct all (or substantially all) of its business;
                        3. is or becomes unable to pay its debts as they fall due;
                        4. is or becomes insolvent or is declared insolvent; or
                        5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
               2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
               3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or
               4. if that other party is an individual:
                  1. 1. 1. that other party dies;
                        2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
                        3. that other party is the subject of a bankruptcy petition or order.
      5. The Provider may terminate this Agreement immediately by giving written notice to the Customer if:
         1. 1. 1. any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and
               2. the Provider has given to the Customer at least 30 days written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 24.5.
      6. The rights of termination set out in this Agreement shall not exclude any rights of termination available at law.

1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save for those provisions which are expressly stated to or which by their nature are required to survive termination and continue to have effect, after termination of the Agreement.
2. Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
3. Within 30 days following termination of this Agreement for any reason, the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement, without prejudice to the parties' other legal rights.

1. The Provider and the Customer undertake to act in accordance with all applicable Australian anti-bribery and anti-corruption laws in relation to this Agreement, see Provider’s business ethics policy. 

1. 1. 1. Any notice given under this Agreement must be in writing and given by one party to the other party as follows:
         1. 1. 1. sent by courier or registered post; or
               2. sent by email;using the relevant contact details set out in  the Order Form.
      2. The addressee and contact details set out in  the Order Form may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 27.
      3. A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.
      4. A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below: 
         1. 1. 1. in the case of notices sent by courier, upon delivery;
               2. in the case of notices sent by registered post, 48 hours after posting; and
               3. in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent).

1. The Provider may subcontract any of its obligations under this Agreement.
2. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations. 
3. Without limiting the Provider’s rights under this Clause 28, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party the provision of services in relation to the support and maintenance of the Platform.

1. Provider currently uses third-party Subprocessors to provide infrastructure services, and to help it provide customer support and email notifications. Prior to engaging any third-party Subprocessor, Provider performs diligence to evaluate their privacy, security and confidentiality practices, and executes an agreement implementing its applicable obligations. Please refer to https://prospend.com/terms/sub-processors for a list of current subprocessors.

1. Save to the extent expressly permitted by applicable law, the Provider must not assign, transfer or otherwise deal with the Provider's contractual rights and/or obligations under this Agreement without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Provider may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.
2. Save to the extent expressly permitted by applicable law, the Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under this Agreement without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

1. No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
2. No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.

1. If a provision of this Agreement is determined by any court of competent jurisdiction or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
2. If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect. 

1. This Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.
2. The exercise of the parties' rights under this Agreement is not subject to the consent of any third party.

1. This Agreement may not be varied except by means of a written document signed by or on behalf of each party. 

1. 1. 1. The Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
      2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
      3. The provisions of this Clause 35 are subject to Clause 21.1.
      4. Each party warrants that:
         1. it has not been provided with any legal, financial or other advice in connection with this Document by any other party to the Agreement; and
         2. it enters into this Agreement, relying only on the Agreement itself and the party's own investigations (including independent advice recevied by it)

1. 1. 1. It is the intention of the parties that the various documents comprising the Agreement be read together. If there is any conflict or inconsistency between any of those documents, the parties agree that they shall take priority and prevail over one another in the following order:
         1. 1. 1. Order Form;
               2. Other Documentation;
               3. Main body of this Agreement; and
               4. Policies referred to in the Agreement;

1. This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.
2. The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this Agreement or its subject matter or formation (including non-contractual disputes or claims.

1. 1. 1. In this Agreement, a reference to a statute or statutory provision includes a reference to: 
         1. 1. 1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
               2. any subordinate legislation made under that statute or statutory provision.
      2. The Clause headings do not affect the interpretation of this Agreement.
      3. This Agreement shall not be interpreted against the party responsible for its drafting.
      4. The singular shall include the plural, and vice versa.
      5. References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
      6. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things such as classes referenced by “including” or “includes.

39. Dispute Resolution

1. 1. 1. Parties will first meet to resolve the issues between 10 Business Days;
      2. if the dispute is not resolved within 10 Business Days, either party may by written notice to the other require that the dispute be deal with by mediation or arbitration;
      3. no party may issue legal proceedings (other than for urgent interlocutory relief) unless that party has first taken all reasonable steps to comply with 39.1 and 39.2

Last Updated: 6 May 2024

Version 20240502v1