Location Agreement
Terms and Conditions (AU)
Last updated 22 March, 2024
Background
A. Hapana provides technology solutions to assist with managing fitness business operations from personal trainers through to fitness studios, gyms, health club facilities and other business models.
B. Hapana has entered into a SOW with the Customer. Under the SOW, Hapana has agreed to provide the Location with access to the Services provided that the Location executes this Agreement.
1. Definitions
The meanings of the terms used in this Agreement are set out below.
1.1 ‘Affiliate’ means, in respect of a company or other business entity, any company or other business entity Controlled by, Controlling, or under the common Control of a third party that also Controls that company or other business entity from time to time.
1.2 ‘Account Information’ means information about the Location provided to Hapana in connection with the creation or administration of the Location Account. For example, Account Information includes End User names, usernames, phone numbers, email addresses and billing information associated with the Location account.
1.3 ‘Agreement’ means these terms and conditions, comprising clauses 1 – 19, together with the Location Agreement and the Payment Services Terms (as applicable).
1.4 ‘Commencement Date’ means the date on which the Location executes this Agreement.
1.5 ‘Confidential Information’ means, in relation to a Party, the confidential information of such Party and includes information relating to the business affairs of such Party and all information of a confidential nature provided by such Party to the other Party or otherwise obtained by the other Party, which:
1.5.1 is not readily available in the public domain; or
1.5.2 if part of the public domain, became part of the public domain as the result of an unauthorised disclosure or a breach of the Agreement.
1.6 ‘Consequential Loss’ means:
1.6.1 any loss or damage which does not arise naturally or in the usual course of business from the breach;
1.6.2 any lost revenue, lost profits, lost business, lost goodwill, lost anticipated savings; and
1.6.3 any indirect, consequential, special, economic or punitive loss or damages,
whether arising from or in connection with any breach of contract, negligence or any other cause of action arising under or in connection with this Agreement;
1.7 ‘Content’ means software (including machine images), data, text, audio, video, or images.
1.8 ‘Control’ means the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of fifty percent (50%) or more of the voting interest, by contract, or otherwise (and Controlled and Controlling are to be construed accordingly).
1.9 ‘Currency’ means the currency specified in the Agreement Details.
1.10 ‘Daily Active User’ means an End User of the Location who is able to access premium content that is otherwise hidden without this access being provided on their account. Content that is available to all End Users regardless of a purchase on account of access to premium content (or complimentary access being granted where the tag in the content suite is “All”) does not constitute access to premium content for purposes of calculating the number of Daily Active Users.
1.11 ‘Documentation’ means the user manuals, installation instructions, reference material and other relevant publication and aids and any updates, replacements, revisions and additions (if any) provided or made available by Hapana or its Affiliates to the Location from time to time in a hard copy, electronic or online format. Documentation excludes any document that is training or marketing material.
1.12 ‘End User’ means an individual that the Location has authorised to access or use the Services in an individual capacity.
1.13 'Fees' means the amounts to be paid by the Location to Hapana in accordance with this Agreement (or by the Customer in accordance with the MSA) for the provision of the Services to the Location as specified in the Agreement Details.
1.14 ‘Force Majeure’ means any event, occurrence or circumstance that is not within the control of a Party and which, by the exercise of reasonable care, that Party is not able to prevent, overcome or provide against.
1.15 ‘Further Term’ means the period set out in clause 3.1.
1.16 ‘GST’ means the tax imposed or sought to be imposed by the GST Act;
1.17 ‘GST Act’ means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.18 ‘Hapana Content’ means Content that Hapana or any of its Affiliates may make available to the Location in connection with the Services, including the Documentation and other related materials. Hapana Content does not include the Services.
1.19 ‘Initial Term’ means the period set out in clause 3.1.
1.20 ‘Insolvent’ means, in the case of a corporation, that corporation becoming:
1.20.1 an externally administered body corporate as defined in the Corporations Act 2001 (Cth);
1.20.2 unable to pay its debts as and when they fall due;
1.20.3 insolvent or deemed to be insolvent under the Corporations Act 2001 (Cth); or
1.20.4 subject to a scheme of arrangement or official management pursuant to the Corporations Act 2001 (Cth).
1.21 ‘Intellectual Property Rights’ means patents, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, copyright (including rights in computer software) and topography rights; inventions, know-how, secret formulae and processes, lists of customers and suppliers and other proprietary knowledge and information; internet domain names; rights protecting goodwill and reputation; database rights; and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition.
1.22 ‘Location Account’ has the meaning given to that term in clause 7.
1.23 ‘Location Data’ means:
1.23.1 any data (that is not aggregated and/or anonymised) associated with the Location’s products, staff, contractors and both active and inactive customers that is provided by the Location or a Location Affiliate to Hapana pursuant to this Agreement or the SOW; and
1.23.2 any other content, data, information or material that is posted, uploaded, submitted, inputted, played or otherwise distributed by a Customer or a Customer Affiliate using the Services pursuant to this Agreement or any End User Licence Agreement (including any content, data, information or materials that is posted, uploaded, submitted, inputted, played or otherwise distributed using the Online Subscription Based Service or the Online Delivery Platform).
1.24 ‘Location Territory’ means the territory in which the Location may use the Services as set out in the Agreement Details in the Location Agreement.
1.25 ’SOW’ means of the Statement of Work or 'MSA' Master Services Agreement between Hapana and the Customer described in the Agreement Details of the Location Agreement.
1.26 ‘Online Delivery Platform’ means the cloud based mechanism by which the Location will access the content of the Online Subscription Based Services.
1.27 ‘Online Subscription Based Services’ means the services that Hapana allows the Location to access via the Online Delivery Platform for a Fee in accordance with the terms of this Agreement, including where specified in the Agreement Details, the Payment Services.
1.28 ‘Party’ or ‘Parties’ means each of the Location and Hapana.
1.29 ‘Payment Services’ means the payment processing and related services specified in the Agreement Details and described in the Payment Services Terms.
1.30 ‘Payment Services Terms’ means the terms and conditions which apply to the Payment Services set out in Schedule 3 (Payment Services Terms);
1.31 ‘Personal Information’ has the meaning given to that term in the Privacy Laws.
1.32 ‘Privacy Laws’ means the Privacy Act 1988 (Cth) and any applicable analogous legislation in any jurisdiction from time to time.
1.33 ‘Privacy Policy’ means Hapana’s privacy policy referenced at https://hapana.com/privacy-policy/, as updated from time to time by Hapana in accordance with clause 8.2.
1.34 ‘Prohibited Content’ means any content that:
(a) infringes any Intellectual Property Right or other right (including any right of publicity) of any person or entity;
(b) is unlawful (including in breach of the Spam Act 2003 (Cth)), threatening, abusive, harassing, hateful, discriminatory, defamatory, libelous, misleading, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane, promotes violence, or is otherwise inappropriate as determined by Hapana in its sole discretion;
(c) contains any virus, worm, malicious code, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Hapana or any person or entity;
(d) encourages illegal activity; or
(e) falsely suggests or implies sponsorship or endorsement by Hapana;
1.35 ‘Services’ means any and all services provided to the Location pursuant to this Agreement, including the Hapana’s Online Subscription Based Services and Online Delivery Platform and any other services or deliverables provided to the Location pursuant to this Agreement.
1.36 ‘Take Down Policy’ means Hapana’s take down policy referenced at https://Hapana.com/take-down-policy, as updated from time to time in accordance with clause 8.2.
1.37 ‘Term’ means the Initial Term and each Further Term.
1.38 ‘Website’ means the URL https://www.Hapana.com/ and any successor or related site as notified by Hapana from time to time.
1.39 ‘Agreement Details’ means all data in the Location Agreement detailed in the “Agreement Details”, “Subscription Services & Fees”, “Payment Services & Fee” or “Variable Service & Fees” sections
1.40 ‘Customer’ means the party identified in the Agreement Details as the ‘Customer’ with whom Hapana has entered into the MSA for the purpose of providing access to the Services to the Location.
1.41 ‘Location’ means the location identified in the Agreement Details
1.42 ‘Location Agreement’ means the signed written location agreement, order form, purchase order, or other document entered into hereunder between the Parties, which sets forth, among other things, the specific Services and deliverables to be provided by HPNA and the Fees to be paid by the Location in respect thereof, including the Agreement Details, background and any schedules attached thereto, and which incorporates by reference these terms.
2. Interpretation
In this Agreement, unless the context requires otherwise:
2.1 references to any party shall include the executors, administrators, successors of that party;
2.2 references to a clause, or Schedule, or other annexure shall be construed as references to a clause of, or Schedule, or annexure to this Agreement, and references to this Agreement shall include its Schedules and any annexures;
2.3 references to (or to any specified provision of) this Agreement or another Agreement, or document, shall be construed as references to (that provision of) this Agreement, or that other Agreement, or document as amended or substituted with the Agreement of the relevant parties and in force at any relevant time;
2.4 references to any statute, ordinance or other law shall include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
2.5 words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;
2.6 where any word or phrase is given a defined meaning in this Agreement, any other part of speech or other grammatical form in respect of such word or phrase shall have the corresponding meaning;
2.7 headings included in this Agreement are for convenience only and shall be disregarded in the construction of this Agreement;
2.8 any phrase introduced by the words’ including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression must be construed as illustrative only and must not be construed as limiting the generality of any preceding words; and
2.9 neither this Agreement nor any part of it is to be construed against a party on the basis that the party, or its lawyers, were responsible for its drafting.
3. Term and Nature of this Agreement
3.1 The Term of this Agreement commences on the Commencement Date and continues for a period of one month (Initial Term). This Agreement will automatically renew for consecutive periods of one month (each a Further Term), unless either Party provides written notice to the other Party that it does not want to renew this Agreement for an additional Further Term at least 15 days prior to the date of expiry of the then-current Initial Term or Further Term.
3.2 Hapana will begin providing the Services on the Commencement Date.
3.3 Notwithstanding clause 3.1, this Agreement will terminate or expire on the earlier of:
3.3.1 termination or expiration of the SOW as notified by Hapana; or
3.3.2 termination or expiration of this Agreement in accordance with the terms and conditions of this Agreement, including clause 3.1 or 13.
3.4 The Location acknowledges and agrees that, as between Hapana and the Customer, the provision of the Services by Hapana to the Customer and the Location is governed by the terms and conditions of the SOW.
3.5 The Location acknowledges and agrees that, as between the Location and Hapana, this Agreement governs the Location’s use of the Services and that other terms may apply to the Location’s use of the Services in respect of the Location’s relationship with the Customer to the extent required by the Customer (for example, as agreed with, or otherwise notified to the Location by, the Customer from time to time, or arising out of a franchise agreement or licence agreement between the Location and the Customer). The terms and conditions in this Agreement in no way limit the terms and conditions that have been agreed between the Customer and Hapana in the SOW.
3.6 By executing (or otherwise agreeing to bound by) this Agreement, the Location acknowledges that it has read the terms and conditions in this Agreement and accepts and agrees to be bound by such terms and conditions.
4. Provision of Services
4.1 Subject to payment of the Fee to Hapana by the Location’s compliance with this Agreement, during the Term Hapana will provide the Location the Services in accordance with this Agreement. Hapana hereby provides the Location with a non-transferrable, non-exclusive and non-assignable ability to access and use the Online Subscription Based Services and Online Delivery Platform, subject to the terms and conditions of this Agreement.
4.2 The Location may only access and use the Online Subscription Based Services or Online Delivery Platform in the Location Territory to deliver services and content in accordance with this Agreement. The Location may not use the Online Subscription Based Services or Online Delivery Platform for any other purpose.
4.3 In Hapana providing the Location with access to the Online Subscription Based Services, the Location acknowledges that it is not authorised to access, reproduce or use the source code associated with the Online Subscription Based Services.
4.4 The Location also acknowledges nothing in this Agreement constitutes a licencing arrangement, in that the Location has no right to reproduce, access, distribute, modify or perform any other acts that are the right of the owner of the underlying source code utilised in the delivery of the Online Subscription Based Services and Online Delivery Platform to the Location.
4.5 Hapana will deliver the Online Subscription Based Services to the any Location via the Online Delivery Platform and, as such, the Location acknowledges it will not receive a physical copy of the Online Subscription Based Services on which the Services have been developed, displayed or accessed. For the purposes of clarity, the Location acknowledges that in the Location accessing the Online Subscription Based Services or Online Delivery Platform, the Location will not own or have any rights to any aspect of the Online Subscription Based Services or Online Delivery Platform other than the ability to access and use the Online Subscription Based Services and Online Delivery Platform in accordance with this Agreement.
5. Payment Services
5.1 Where the Online Subscription Based Services include Payment Services (as indicated in the Agreement Details), the Payment Services Terms will apply to the provision of the Payment Services.
5.2 In the event of any conflict or inconsistency between the terms and conditions of the Payment Services Terms and the terms and conditions of the remainder of this Agreement, the terms and conditions of this Agreement prevail to the extent of such conflict or inconsistency and the terms and conditions of the Payment Services Terms are to be read down, or if necessary severed, to the extent necessary to resolve the conflict or inconsistency, except to the extent that such conflict or inconsistency concerns the Payment Services, in which case, the terms and conditions of the Payment Services Terms prevail to the extent of such conflict or inconsistency and the terms and conditions of the remainder of this Agreement are to be read down, or if necessary severed, to the extent necessary to resolve the conflict or inconsistency.
6. Information and documents provided by the Location
6.1 The Location must, within a time that does not delay Hapana in providing the Services, obtain all necessary licences and make available to Hapana all the information, documents and other details, access and permissions required for Hapana to provide the Services as requested by Hapana from time to time, including any Account Information (Location Information).
6.2 The Location must ensure the accuracy, completeness and correctness of the Location Information. For the avoidance of doubt, Hapana will not be required to check the Location Information for accuracy, completeness or correctness and may rely on the Location Information as if it were accurate, complete and correct.
7. Location Account
7.1 To access the Online Delivery Platform, the Location may be required to create a client account in accordance with the procedures notified by Hapana from time-to-time (‘Location Account’).
7.2 The Location agrees that the access rights of any End User (for example on a named or password enabled basis) cannot be shared or used by more than one individual, unless the right is reassigned in its entirety to another individual authorised user in which case the first user shall no longer have any right to access the Services.
7.3 The Location must:
7.3.1 (and must procure that each End User) ensure that any passwords associated with the Location Account are securely stored and not disclosed, other than as permitted under this Agreement; and
7.3.2 immediately notify Hapana in writing if it suspects, or there has been, an unauthorised use of the Location Account or if the Account Information is lost or stolen.
7.4 The Location must (and must procure that each End User) allow Hapana or its authorised representative on reasonable notice to access the Location’s premises and/or records, data and information which relate to the use of the Service and other obligations under this Agreement during business hours, for the purpose of confirming compliance with the terms and conditions of this Agreement.
7.5 Notwithstanding any other provision of this Agreement, the Location acknowledges and agrees that it is responsible for all activities that occur under its Location Account, regardless of whether the activities are undertaken by the Location, End Users or a third party (including the Location’s employees, contractors or agents), unless such activity is undertaken by Hapana. Except to the extent caused by Hapana’ breach of this Agreement, Hapana and its Affiliates are not responsible for unauthorised access to the Location Account.
8. Changes to the Services and this Agreement
8.1 The Location acknowledges and agrees that:
8.1.1 Hapana has agreed to provide the Location access to the Services on the terms of this Agreement in accordance with the SOW and as a result of the Location’s association with the Customer;
8.1.2 Hapana and the Customer have negotiated and agreed the terms and conditions of this Agreement and have agreed that the terms and conditions of this Agreement will apply for all locations that are associated with the Customer and will be receiving the Services;
8.1.3 Hapana and the Customer may from time to time negotiate amendments to the SOW for the collective benefit of all locations associated with the Customer, including the Location, which may include amendments or changes to the scope and nature of the Services and the Fees to be paid for the Services and may require amendments to the terms and conditions of this Agreement; and
8.1.4 in the event Hapana and the Customer agree to amend the terms and conditions of the SOW or any other such agreement which may require amendments to the terms and conditions of this Agreement, including the scope or nature of the Services, Hapana will provide the Location with written notice of such amendments to this Agreement at least 30 days prior to the date that such amendments will become effective. If the Location does not accept such amendments, the Location must notify Hapana in writing within 10 days of receiving the notice of such amendments, in which case, either Party may elect to not renew this Agreement in accordance with clause 3.1 without penalty.
8.2 In the event that Hapana makes any amendments to the Privacy Policy or the Take Down Policy, it will provide the Location with written notice of such amendments at least 30 days prior to the date that such amendments will become effective. If the Location does not accept such amendments, the Location must notify Hapana in writing within 10 days of receiving the notice of such amendments, in which case, either Party may elect to not renew this Agreement in accordance with clause 3.1 without penalty.
9. Usage Conditions
9.1 The access granted by Hapana to the Location under this Agreement must not be assigned, novated or provided by the Location to another party without the prior written consent of Hapana.
9.2 The Location must not create or permit to exist a security interest or encumbrance over the Services (or any part or component of the Services).
9.3 The Location must not disclose, make available, display, demonstrate or otherwise provide the Services (or any part or component of the Services) to any third party (other than End Users).
9.4 The Location must not (and must procure that each End User does not) use the Services or Hapana Content in any manner or for any purpose other than as expressly permitted by this Agreement.
9.5 The Location must not (and must procure that each End User does not) attempt to:
9.5.1 modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services;
9.5.2 reverse engineer, disassemble, or decompile any of the Services or apply any other process or procedure to derive the source code of any software included in the Services (in each case except to the extent these things cannot be prohibited under applicable law);
9.5.3 access or use the Services in a way intended to avoid incurring fees (or causing the Customer to avoid incurring fees) or exceeding usage limits or quotas; or
9.5.4 resell or on-provide the Services (except as to End Users as expressly set out in this Agreement).
9.6 The Location must ensure that all aspects of the Online Subscription Based Services and Online Delivery Platform are protected at all times from misuse, any unauthorised use, damage, attempts to copy or reverse engineer the Online Subscription Based Services and Online Delivery Platform.
9.7 The Location must immediately notify Hapana in writing as soon as possible after it becomes aware of any form of misuse, damage or unauthorised use that has occurred or is suspected of having occurred to any aspect of the Online Subscription Based Services or Online Delivery Platform, or attempts to copy or reverse engineer any aspect of the Online Subscription Based Services or Online Delivery Platform. If the Location so notifies Hapana in accordance with this clause, Hapana may, at its own discretion, take such action as it deems appropriate against the infringing party in order to protect its legal and economic rights related to the Services.
9.8 The Location must not (and must take all possible steps to ensure that any other person, including any End User, does not):
9.8.1 reverse engineer, reverse assemble, disassemble, or decompile the software, code systems, etc associated with the delivery of the Online Subscription Based Services and Online Delivery Platform; or
9.8.2 otherwise attempt to discover any source code, algorithms, copyright trade secrets or other proprietary rights embedded in or relating to the delivery of the Online Subscription Based Services or Online Delivery Platform by any means whatsoever.
9.9 The Location must promptly supply Hapana with any information, documents, or materials with respect to the use of the Online Subscription Based Services and Online Delivery Platform, as reasonably requested by Hapana.
9.10 The Location must only use the Online Subscription Based Services and Online Delivery Platform strictly in the relevant Location Territory in accordance with the terms of this Agreement.
9.11 The Location must obtain Hapana’s prior written approval in the event the Location desires to use any information, knowledge, content, outcomes, etc, with respect to the Online Subscription Based Services or Online Delivery Platform for advertising or promotional purposes.
9.12 The Location must ensure that all environment(s) used by the Location to enable the Location’s access to the Online Subscription Based Services or content generated via the use of the Online Subscription Based Services or Online Delivery Platform, including by ensuring network routers and firewalls (should those be in place) are correctly configured and maintained to allow data to flow into the Online Subscription Based Services or Online Delivery Platform in a secure manner. The Location must, at its own expense, provide and maintain all communications facilities required for accessing and using the Services.
9.13 The provisioning, security, support, and maintenance of the Location’s networks and of all network equipment, network and Internet connections, computing devices, all software and other hardware operating on such equipment, and all APIs provided by or on behalf of the Location to Hapana and/or to the Locations are the responsibility of the Location.
9.14 The Location must cooperate with Hapana and must use its best endeavours to protect the Online Subscription Based Services or Online Delivery Platform from any unauthorised use or use not allowed pursuant to this Agreement.
9.15 The Location is solely responsible for the accuracy of all data, information and other materials (including any Location Data) it inputs into the Services.
9.16 When using the Services, the Location must not post, upload, submit, play or otherwise distribute any Prohibited Content.
9.17 The Location acknowledges that:
9.17.1 certain third parties (such as financial service providers) may from time to time be engaged by Hapana in connection with the provision of, and the Location’s use of, the Online Subscription Based Services and Online Delivery Platform and that in certain circumstances, Hapana may receive consideration from such third parties in connection with the provision of, and the Location’s use of, the Online Subscription Based Services and Online Delivery Platform;
9.17.2 except to the extent the Location receives Payment Services, as between Hapana and the Location, the Location is solely responsible for engaging its own chosen third party provider in connection with the facilitation of credit card, debit card and other related financial transactions through the Online Subscription Based Services and Online Delivery Platform;
9.17.3 Hapana is not responsible for:
(a) any act or omission of such third party provider/s; or
(b) the provision of the relevant financial transaction/s;
(c) the Location is liable and responsible to pay any fees or charges rendered by such third party providers in connection with the Location’s use of the Online Subscription Based Services and Online Delivery Platform, including credit and debits card transaction fees and charges, that are not already covered by the Fees;
9.17.4 if, but only to the extent that, any Intellectual Property Rights owned by a third party are incorporated into any Services and such third party requires that the Location agree to certain terms and conditions (Third Party Terms), then the Location will agree to such Third Party Terms for those Intellectual Property Rights, such that the licences granted under this Agreement or any relevant Location Agreement apply with only those variations required by the Third Party Terms; provided that Hapana will provide a copy of any such Third Party Terms to the Location upon request;
9.17.5 any breach by the Location of any Third Party Terms shall be deemed a breach of this Agreement. The Location will hold harmless and indemnify Hapana for any loss, claim or damages suffered by Hapana arising out of or related to any breach by the Location of any Third Party Terms, unless such loss, claim or damages was caused by Hapana or the Location used generally accepted measures to prevent the breach. The Location acknowledges that such loss, claim or damage may arise as a result of a contractual relationship between Hapana and any third party, and that such loss, claim or damage shall not be deemed Consequential Loss for the purposes of this Agreement; and
9.17.6 in the event that:
(a) any Intellectual Property Rights or components owned by a third party are incorporated into the Services; and
(b) such third party Intellectual Property Rights or components become unavailable, outdated or unsuitable in the reasonable opinion of Hapana,
Hapana may cease the provision of such third party Intellectual Property Rights or components, or substitute such third party Intellectual Property Rights or components with other third party Intellectual Property Rights or components of similar functionality, provided that if Hapana’s ceasing or substituting of third party Intellectual Property Rights in accordance with this clause may have a material impact on the Services, Hapana will provide the Location with written notice of such cessation or substitution at least 30 days prior to the date that such cessation or substitution will become effective. If the Location does not accept such cessation or substitution, the Location must notify Hapana in writing within 10 days of receiving the notice of such cessation or substitution, in which case, either Party may elect to not renew this Agreement in accordance with clause 3.1 without penalty.
10. Payment of Fees
10.1 All references to the Fee pricing under this Agreement are:
10.1.1 in the Currency; and
10.1.2 per month, unless otherwise specified.
10.2 The Location must pay all fees and charges payable by the Location under or in connection with this Agreement (including the Fees) by direct debit. If at any time the direct debit is declined, Hapana may charge the Location a fee of $25.00 to cover the costs and expenses incurred by Hapana in connection with the reprocessing of such payment.
10.3 The Fees must be paid by the Location to Hapana by the 15th day of each month. Billing start date for each Location commences on the date of commencement of site creation at the request of the Location.
10.4 In consideration of Hapana providing the Location with access to and use of the Services, the Location must pay to Hapana the Fees at the rate and in the manner described in the Agreement Details in the Location Agreement. The Location acknowledges that it is responsible for payment to Hapana of all fees and charges in connection with the provision of the Services (including, for the avoidance of doubt, for any fees and charges in connection with the Payment Services).
10.5 Payment of any Fees after the due date for any reason (including where a direct debit arrangement is declined) shall accrue interest at the compounded daily rate of 3% above the per annum interest rate charged by the Commonwealth Bank of Australia on an overdraft facility in excess of AUD100,000.
10.6 Terms defined in the GST Act have the same meaning in clauses 10.7 through 10.14 unless provided otherwise.
10.7 If the GST Act does not apply to the consideration provided in this Agreement for a supply made under this Agreement, the provisions of the relevant International Taxation Rules shall apply.
10.8 The Parties acknowledge that unless otherwise specified in the Agreement Details above, the consideration provided in this Agreement for a supply made under this Agreement does not include an amount in respect of GST on the supply.
10.9 If GST is or will be imposed on a supply made under or in connection with this Agreement, the consideration otherwise provided for that supply under this Agreement shall be increased by the amount of that GST and the recipient of that supply shall pay the amount of that GST to the supplier at the same time as the consideration otherwise provided for the supply is payable to the supplier.
10.10 The recovery of any amount in respect of GST by the supplier under this Agreement is subject to the issuing of the relevant Tax Invoice or Adjustment Note to the recipient. The recipient must pay any amount in respect of the GST within fourteen (14) days of the issue of the relevant Tax Invoice or Adjustment Note to the recipient.
10.11 If there is an adjustment event in relation to a supply which results in the amount of GST on a supply being different from the amount in respect of GST recovered by the supplier, as appropriate, the supplier:
10.11.1 may recover from the recipient the amount by which the amount of GST on the supply exceeds the amount recovered; or
10.11.2 must refund to the recipient the amount by which the amount recovered exceeds the amount of GST on the supply.
10.12 Costs required to be reimbursed or indemnified under this Agreement must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit.
10.13 If the rate of GST increases above 10%, the Location will be liable to pay additional amounts for any such increase, in addition to the fees and charges payable under this Agreement.
10.14 The Location must pay all stamp duty, levies, taxes, and other duties arising under or in connection with this Agreement (other than tax on the overall income of Hapana and payroll tax of Hapana).
11. End Users
11.1 The Location acknowledges and agrees that:
11.1.1 it will be deemed to have taken any action that it permits, assists or facilitates any person or entity to take in relation to this Agreement, the Location Data or use of the Services;
11.1.2 it is responsible for End Users’ use of the Location Data and the Service;
11.1.3 it will procure that all End Users comply with the obligations under this Agreement and that the terms of the End User licence agreement (if any) with each End User are consistent with this Agreement; and
11.1.4 if it becomes aware of any violation of its obligations under this Agreement by an End User, it will immediately inform Hapana and terminate such End User’s access to the Location Data and the Services.
11.2 Unless expressly agreed in writing otherwise, the Location is responsible for providing customer service (if any) to End Users and Hapana does not provide any support or services to End Users.
12. Temporary Suspension
12.1 Hapana may suspend the Location’s or any End User’s right to access or use any portion or all of the Services immediately upon notice to the Location if Hapana determines:
12.1.1 that the Location or the relevant End User has breached any of the provisions of this Agreement or otherwise failed to perform any of its obligations under this Agreement, including any payment obligations;
12.1.2 the Location’s use of or access to the Services:
(a) is fraudulent or may cause Hapana to be subject to liability; or
(b) breaches any applicable law; or
12.1.3 Hapana has validly suspended the provision of its services under the SOW, in which case Hapana or the Customer will notify the Location.
12.2 Any notice of suspension provided by Hapana in accordance with clause 12.1 must:
12.2.1 specify the relevant breach, failure or fraudulent or illegal use of or access to the Services that give rise to such suspension; and
12.2.2 except in the case of suspension under clause 12.1.3, advise the Location of what is required to remedy such breach, failure or fraudulent or illegal use of or access to the Services.
12.3 If Hapana suspends the Location’s use of, license to or access to, any Services pursuant to clause 12.1:
12.3.1 the Location:
(a) will not be entitled to use or access the Services during the suspension; and
(b) will not be entitled to any relief or remedy as a result of the suspension.
(c) will remain responsible for all fees and charges it has incurred for the Services up to and including the date of suspension; and
(d) will remain responsible for any applicable fees and charges for any Services to which it continues to have access, as well as applicable data storage fees and charges, and fees and charges for in-process Services or tasks completed after the date of suspension; and
12.3.2 such suspension will end (and the Location’s use and access to the Services will resume) upon:
(a) if the suspension arose pursuant to clause 12.1.1 or 12.1.2, the Location complying with what is required to remedy such breach, failure or fraudulent or illegal use of or access to the Services as advised by Hapana in accordance with clause 12.2.2; or
(b) if the suspension arose pursuant to clause 12.1.3, the Customer remedying the cause of the suspension pursuant to the SOW.
12.4 The Location acknowledges and agrees that Hapana will not be responsible for, or have any liability to the Location for, any suspension of the Services pursuant to this clause 12 (including for any suspension that arises as a result of the valid suspension of the provision of the services under the SOW).
12.5 Hapana’s right to suspend the Location or any End User’s right to access or use the Services is in addition its right to terminate this Agreement in accordance with the terms and conditions of this Agreement, including pursuant to clause 13.
13. Termination
13.1 Termination for Cause
13.2 Either Party may terminate this Agreement by notice in writing to the other Party if:
13.2.1 the other Party breaches a term of this Agreement and the Party in breach fails to remedy such breach within sixty (60) days after receipt of the notice specifying the breach and requiring it to remedy the same; or
13.2.2 the other Party is Insolvent.
13.3 Effect of Termination or Expiration
13.3.1 Upon termination or expiration of this Agreement, the Location must:
(a) cease to use the Services, Hapana’s Intellectual Property and Hapana Content;
(b) cease to use any marks, names, indicia, which in the opinion of Hapana are directly or indirectly related to the Services or any other material which may in any way indicate or tend to indicate that the Customer is or was authorised to use the Intellectual Property Rights associated with the use of the Services; and
(c) at the option of Hapana, either deliver to Hapana or destroy and permanently delete:
(i) all advertising, literature or other material that refer to the Services; and
(ii) any other item, including documents, which relate to any aspect of the Services, Hapana’s Intellectual Property or any Intellectual Property that relates to the Services and are in the possession, custody or control of the Location.
13.3.2 Termination or expiration of this Agreement for whatever reason does not affect the ability of either Party to enforce a right that may have accrued to it under this Agreement prior to the date of termination or expiration.
14. Force Majeure
14.1 Neither Party is responsible for any failure to perform its obligations under this Agreement if it is prevented or delayed in performing those obligations by an event of Force Majeure. For the avoidance of doubt, an event of Force Majeure does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which was due and payable prior to the occurrence of that event.
14.2 If an event of Force Majeure occurs, then, as soon as reasonably practicable, each Party agrees to give the other Party written notice of reasonably full particulars of the event, occurrence or circumstances of Force Majeure, as well as the steps taken to minimise its effects, and use all reasonable diligence and employ all reasonable means to remedy, abate or mitigate the effects of Force Majeure as expeditiously as possible.
15. Intellectual Property
15.1 Hapana and the Location acknowledge that:
15.1.1 each Party owns any pre-existing Intellectual Property Rights that it created, purchased or licensed prior to entering into, and separate from, this Agreement;
15.1.2 Hapana owns any and all Intellectual Property Rights that are created or generated as a result of, or in connection with, this Agreement;
15.2 Each Party acknowledges that in the operation of this Agreement, there is no transfer of ownership or assignment of the other Party’s Intellectual Property Rights generated either prior to or as a result of the operation of this Agreement.
15.3 Under this Agreement, Hapana is not granting the Location a licence of any kind or the right to use any Intellectual Property Rights. This Agreement simply provides the Location with the ability to access and use the Services covered by this Agreement (which are produced via Hapana’s Intellectual Property Rights) on a subscription basis.
15.4 The Location acknowledges and agrees that:
15.4.1 as between Hapana and the Location, Hapana retains exclusive possession, ownership and control of all Intellectual Property Rights, knowledge and information used in the provision of the Services, despite Hapana providing the Location with access to the Services in accordance with the SOW and this Agreement and Hapana’s possession, ownership and control of Intellectual Property Rights, knowledge and information are protected by law;
15.4.2 as between Hapana and the Location, Hapana and/or its Affiliates own all right, title and interest in and to the Services (and all Intellectual Property Rights in the Services) and all results and proceeds of the Services pursuant to this Agreement; and
15.4.3 the access and use of the Services are provided under the terms of this Agreement for a limited duration during the Term, with both Parties acknowledging that the use of the Services (or any part or component of the Services) is not a licence, a sublicence, an assignment, a grant of a right of or sale of the software or any Intellectual Property Rights associated with the provision of the Services by Hapana to the Location.
15.5 Except as expressly set out in this Agreement or as permitted by any applicable law, the Location agrees and undertakes:
15.5.1 not to access or allow any person to copy any software elements used in the provision of the Services;
15.5.2 not to rent, lease, licence, loan, sublicence, assign or grant any rights with respect to the Services, or any Intellectual Property Rights related to the Services; and
15.5.3 not to make alterations to, or modifications of, translate, merge, adapt, vary or modify the whole or any part of the Services, not permit the Services or a part thereof to be combined with, or become incorporated with, any other software programs or similar outcomes.
15.6 Except as provided in this clause 15, the Location obtains no rights under this Agreement from Hapana or our licensors to the Services or the Hapana Content (including any modifications, enhancements or customisations of the Services or the Hapana Content, including any related Intellectual Property Right).
15.7 The Location is responsible for ensuring that the Location has all the necessary licences, consents and permissions in place to use any third party Intellectual Property (including music, video or images) in connection with the Services. The Location must not use such content without all necessary licences, consents and permissions.
15.8 If Hapana reasonably believes that the Location’s use of the Services breaches the Intellectual Property Rights of a third party, Hapana may:
15.8.1 block access to or remove the relevant Location Content (in whole or in part) from the Service; and/or
15.8.2 discontinue, suspend or terminate the Location’s access to the Services in accordance with this Agreement.
16. Location Data
16.1 The Location acknowledges and agrees that:
16.1.1 it is responsible for taking its own steps to maintain appropriate security, protection and backup of the Location Data, which may include the use of encryption technology to protect the Location Data from unauthorised access and routine archiving of the Location Data; and
16.1.2 any Location Account credentials and private keys generated by the Services (or otherwise provided by Hapana) are for the Location’s personal and internal use only and the Location must not (and must procure that End Users do not) sell, transfer or sublicense them to any other entity or person.
16.2 The Location grants to Hapana a non-exclusive, sub-licensable, royalty free licence to use the Location Data to provide the Services to the Location and any End Users in accordance with this Agreement.
16.3 The Location grants to Hapana a non-exclusive, sub-licensable, royalty free licence to use, copy, modify, display and distribute any anonymous information derived from Location Data, including to improve Hapana’s offering and potentially offer new services.
16.4 The Location represents and warrants to Hapana that:
16.4.1 it owns all right, title and interest in and to the Location Data, or has the necessary licenses, rights, consents and permissions to use such Location Data (and grant the rights for Hapana to use the Location Data set out in this clause 16), in relation to the Services;
16.4.2 the Location’s use of the Location Data, and any use of the Location Data by Hapana in connection with the Services, will not breach any applicable law; and
16.4.3 the Location Data, and any use of the Location Data by Hapana in connection with the Services, will not infringe the Intellectual Property Rights or any other rights of any third party.
16.5 The Location acknowledges and agrees that it is solely responsible for the development, content, operation, maintenance, and use of the Location Data, including:
16.5.1 the technical operation of the Location Data;
16.5.2 compliance of the Location Data with all applicable laws;
16.5.3 any claims relating to the Location Data;
16.5.4 obtaining all necessary licences, permissions and consents in respect of the Location Data; and
16.5.5 properly handling and processing notices sent to the Location (or any of its Affiliates or End Users) by any person claiming that the Location Data violates such person’s rights, including notices pursuant to any copyright or other Intellectual Property laws.
16.6 The Location must:
16.6.1 comply with the Take Down Policy; and
16.6.2 ensure its End Users comply with the Take Down Policy,
in respect of any Location Data.
17. Indemnity, Disclaimers and Liabilities
17.1 Indemnity
17.1.1 The Location will defend, indemnify, and hold harmless Hapana, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including legal fees on a solicitor-client basis) arising out of or relating to:
(a) any breach by the Location of clauses 15 (Intellectual Property), 18 (Privacy and Confidential Information) and the Payment Services Terms; and
(b) any third party claim:
(i) that arises as a result of the Location or any End Users’ using the Services (including any activities under the Location’s Location Account and use by the Location’s employees and personnel) in a manner that breaches the terms and conditions of this Location Agreement;
(ii) that Hapana’s use of the Location Data or the combination of the Location Data with other applications, content or processes (in accordance with this Agreement) infringes or misappropriates third party Intellectual Property Rights or other rights, unless such infringement is caused by the acts or omissions of Hapana; and
(c) a dispute between the Location and any End User, unless such dispute is caused by the acts or omissions of Hapana.
17.1.2 If Hapana or its Affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, the Location must reimburse Hapana for reasonable legal fees, as well as Hapana’s employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Hapana’s then-current hourly rates only if the Location is the cause of the matter.
17.2 Disclaimers
17.2.1 Other than as expressly set out in this Agreement, Hapana makes no other warranties whatsoever with respect to the Services and the Location must rely on its own enquiries about the Services.
17.2.2 To the fullest extent permitted by applicable law, but subject to the remainder of this clause 17.2:
(a) Hapana and its licensors and suppliers exclude all implied representations, warranties, terms and conditions of any kind whatsoever (whether implied by common law, statute or otherwise) and the application or availability of any statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees that the Services are of satisfactory quality or fit for their purpose); and
17.2.3 The Location acknowledges that the Services are made available “as is” and “as available”. Hapana and its licensors and suppliers do not represent, warrant or guarantee that the Services will be error or ‘bug’ free or available at any specific time required by the Location.
17.3 Limitation of Liability
17.3.1 Subject to clause 17.3.2, a Party’s total maximum liability to the other Party whether in contract, tort (including negligence), breach of statutory duty, or otherwise for all losses sustained, suffered or incurred by the Party arising under or in connection with this Agreement is limited to an amount equal to the Fees received by Hapana for Services provided by Hapana to the Location in the 12 months immediately prior to the relevant claim.
17.3.2 The limitations on a Party’s liability under clause 17.3.1 to not apply to the extent that such losses arising from an indemnity given in accordance with clause 17.1.
17.3.3 The Location and Hapana (and its licensors and suppliers) will not be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement for any Consequential Loss.
17.3.4 Nothing in this Agreement is intended to exclude, restrict or modify any rights that the Location may have under the Competition and Consumer Act 2010 (Cth) (the CCA) or any other applicable legislation which may not be excluded, restricted or modified by agreement.
17.3.5 If the CCA or any other applicable legislation provides the Location with any non-excludable statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees) in respect of any goods or services supplied under this Agreement, then the exclusions of and limitations on Hapana or its licensors and suppliers’ liability in this Agreement do not apply in respect of such non-excludable statutory rights; however, where Hapana’s liability with respect to such non-excludable statutory rights may be restricted or modified, then, without prejudice to any non-excludable statutory rights that Hapana may have which may not be restricted or modified by agreement, the liability is limited to:
(a) in the case of a supply of goods, Hapana doing any one or more of the following (at its election): replacing the goods or supplying equivalent goods; repairing the goods; paying the cost of replacing the goods or of acquiring equivalent goods; or, paying the cost of having the goods repaired; and
(b) in the case of a supply of services, Hapana doing either or both of the following (at its election): supplying the services again; or, paying the cost of having the services supplied again.
17.3.6 Each Party must promptly mitigate any loss suffered (or likely to be suffered), sustained or incurred under or in connection with this Agreement.
17.3.7 Hapana will not be liable for any loss or damage suffered by the Location in connection with a loss of access to the Services caused by the act or omission of a third party hosting service.
18. Privacy and Confidential Information
18.1 In connection with the Services, each Party must comply with the Privacy Laws to the extent they apply to a Party.
18.2 The Location must:
18.2.1 where applicable, comply with the Privacy Policy;
18.2.2 not do anything (or fail to do anything) that may reasonably cause Hapana to be in breach of the Privacy Policy; and
18.2.3 take all reasonable steps to ensure that no End User does anything (or fails to do anything) that may reasonably cause Hapana to be in breach of the Privacy Policy.
18.3 Each Party shall not, without the prior written consent of the other Party, disclose or use the other Party’s Confidential Information, except as necessary to fulfil the obligations imposed under this Agreement.
18.4 Each Party must ensure that its employees, officers, contractors, agents and all other persons under its control or direction will comply with obligations similar to the obligations imposed on the Party under this clause.
18.5 Notwithstanding any other provision of this clause, a Party may disclose the terms of this Agreement to the Party’s legal or financial advisors, or as required by law.
18.6 This clause shall survive termination or expiration of this Agreement.
19. General
19.1 Assignment and Subcontracting
19.1.1 A Party must not assign, novate or otherwise deal with its rights or obligations arising under or in connection with this Agreement (whether in whole or in part), without the prior written consent of the other Party.
19.1.2 Subject to clause 19.1.3, the Parties acknowledge that any consent provided by a Party may be withheld or made subject to such conditions as the consenting Party decides (in its discretion acting reasonably).
19.1.3 The Location acknowledges and agrees that Hapana may:
(a) subcontract any part of the Services to a third party without the consent of the Location; and
(b) appoint any officer or employee of any Affiliate of Hapana to perform any part or all of the Services.
19.1.4 For the avoidance of doubt, Hapana will not be relieved from any liability or obligation under this Agreement by virtue of a subcontract arrangement.
19.2 Modifications to the Agreement
Subject to clause 8, no variation to this Agreement is effective unless agreed in writing between the Parties.
19.3 Electronic execution
These Terms and Conditions and any other part of this Agreement may be executed via an online process or by way of electronic signature or other method and may be executed in counterparts, all of which taken together constitute one Agreement.
19.4 Counterparts
This Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. A Party may execute this Agreement by signing any counterparts.
19.5 Entire Agreement
This Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the Parties in respect of its subject matter.
19.6 Relationship
Nothing in this Agreement is to be construed as creating, or evidence of, a partnership between the Parties.
19.7 Severability
Any provision of this Agreement, which is or becomes illegal, void, voidable or unenforceable, will be ineffective to that extent without affecting or invalidating the remaining provisions of this Agreement.
19.8 Notices
19.8.1 Hapana may provide any notice to the Location under this Agreement by sending a message to the email address set out in the Agreement Details. The Location must ensure that such email address remains updated at all times during the Term and must provide written notice to Hapana if such email address changes. Such notices will be effective from the date and time it is received by the Location (unless an answerback code or error message is received by the sender which indicates the email transmission has not been successful).
19.8.2 A notice or other communication under this Agreement by the Location be sent by sending a message to Hapana’s email address set out in this Agreement. A Location Notice is deemed to be effective from the date and time it is received by Hapana (unless an answerback code or error message is received by the sender which indicates the email transmission has not been successful).
19.9 Governing Law
This Agreement is governed by the laws of New South Wales, Australia. The Parties irrevocably submit to the non-exclusive jurisdiction of courts of New South Wales Australia) and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each Party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
19.10 No waiver
No Party may rely on the words or conduct of the other Party as waiver of any right unless the waiver is in writing and signed by the Party granting the waiver.