Your use of our cloud management software is governed by the terms and conditions of this Agreement.
By clicking on the “I accept the terms and conditions of this Agreement” button you are indicating your acceptance of this Agreement and agree to be legally bound by it.
This Agreement is made between You and BUTTONWOODCX PTY LTD T/A BUTTONWOOD CLOUD EXCHANGE ACN 129 347 468 of C/- PWC 28 Sydney Ave, Forrest ACT 2603.
1. Definitions and interpretation
In this Agreement:
Agreement means this Agreement for the Preview of the Buttonwood Software.
Buttonwood Software means the software owned by Buttonwood and either accessed or downloaded by You or delivered to You by Buttonwood pursuant to this Agreement and any enhancement, modification, update or new release of the software.
Claim includes any claim, action, demand or proceeding.
Cloud Subscription means a subscription to a cloud based service (excluding the Buttonwood Services).
Cloud Subscription Fees means the Fees charged by the Cloud Subscription Providers.
Cloud Service Provider means a provider of the Cloud Subscriptions.
Commencement Date means the date on which you first access or download the Buttonwood Software.
Confidential Information means all information provided by one party (the Disclosing Party) to the other (the Receiving Party) in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
- information that enters the public domain or is disclosed to the Receiving Party by a third party free of any obligation of confidence, other than through a breach of this Agreement, and
- information developed independently by the Receiving Party free of any obligation of confidence.
Consumption Fees means the fees incurred for the consumption of infrastructure as a service.
Documentation means any and all proprietary documentation made available to You by Buttonwood for use with the Buttonwood Software, including any user’s guide or any documentation available online.
Force Majeure Event means any event beyond the reasonable control of the relevant party.
Free Trial End Date is the date a Free Trial Period concludes.
Free Trial Period means the period from the Commencement Date to the Free Trial End Date.
Free Trial Reports means any comments, consultations, reports or test results by You detailing your experience of the Buttonwood Software.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
IaaS means the infrastructure as a service.
Insolvency Event means the occurrence of any one or more of the following events in relation to a party:
- an order is made or an effective resolution is passed for winding up or dissolution without winding up (other than for the purposes of solvent reconstruction or amalgamation) of that party and the order or resolution remains in effect for a continuous period of 7 days;
- a controller, receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or substantial part of the undertaking and property of that party and the appointment remains in effect for a continuous period of 7 days;
- a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of that party;
- that party is unable to pay its debts as they fall due;
- that party becomes insolvent or is deemed to become insolvent under any applicable law; or
- that party ceases to carry on business or threatens to do so.Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Liability means all liabilities, costs, damages, losses, expenses and outgoings of whatever description, including the costs and expenses of defending or settling any Claim.
Minimum Period means 12 months from the start date of a Service Level Package.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
SaaSmeans Software as a Service.
Service Fees means the fees payable for the Service provided to You under clause 2.1. These are published by or available from Buttonwood from time to time, and may vary according to your consumption of the Services.
Service Level Package means the service levels selected by you which will include the hours of support, any applicable response times, Support Fees and contact details.
Services means the services set out in clause 2.1.
Support Fees means the fees payable for the support provided to You under clause 7.
You, Your means the entity that has purchased Buttonwood Services.
Unless the context requires otherwise:
- a reference to a person includes a corporation, a trust or any other legal entity;
- the singular includes the plural and vice versa;
- headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
- monetary references are to Australian currency unless otherwise stated;
- where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
- the term “includes” (or any similar term) means “includes without limitation”; and
- a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
Buttonwood provides the following Services to You in relation to Cloud Subscription usage:
- IaaS provisioning and management;
- SaaS application aggregation and integration;
- SaaS application management;
- Financial reporting of cloud usage;
- Consolidated billing of subscription services.
You acknowledge that the Services are dependent upon:
- the parameters and limits set by You from time to time and/or your pattern of historical usage;
- You providing us with the details of your Cloud Service Providers; and
- the regularity and availability of reports and usage data from the relevant Cloud Subscription Providers.
3. Grant of Licence to use the Buttonwood Software
3.1 Buttonwood grants you a non-exclusive, world-wide, non-transferable licence to use and access the Buttonwood Software and the Documentation, subject to and in accordance with this Agreement.
You must not:
- use the Buttonwood Software for any purpose or in any manner other than as set out in clause 3.1;
- permit any third party to use the Buttonwood Software;
- use any downloaded portion of the Buttonwood Software at any location apart from the Site;
- rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Buttonwood Software access to any third party;
- reproduce, make error corrections to or otherwise modify or adapt the Buttonwood Software or the Documentation or create any derivative works based upon the Buttonwood Software or the Documentation;
- de-compile, disassemble or otherwise reverse engineer the Buttonwood Software or permit any third party to do so; or
- modify or remove any copyright or proprietary notices on the Buttonwood Software or the Documentation.
- allow any third party to do any of the things identified in this clause 3.2.
3.3 Buttonwood may issue to You a user identification and password to authorise Your use or access to the Buttonwood Software for the term of this Agreement.
- take all reasonable steps to safeguard any issued user identification and password for the Buttonwood Software to ensure that no unauthorised person will have access to it, and that no persons authorized to have access will make any unauthorized use;
- promptly report to Buttonwood any unauthorized use of the Buttonwood Software of which you become aware and take any further steps reasonably requested by Buttonwood to prevent unauthorized use;
- keep Your account permissions, billing, support contacts and other account information up to date; and
- comply with Buttonwood’s Acceptable Use Policy as modified from time to time;
- ensure that any of your officers and employees who you authorise to use the Buttonwood Software (Your Authorised Users) comply with this Agreement, and you will be liable for the acts and omissions of Your Authorised Users as if they were your acts or omissions.
4. Free Trial
You acknowledge that the intent of the Free Trial is to enable You to assess the Buttonwood Software and that no representation is made by Buttonwood that:
a. the Buttonwood Software is suitable for Your requirements; or
b. the Buttonwood Software will necessarily be fit for any purpose specified by You.
During the Preview Period, in consideration of the provision of the licences under this Agreement, You agree to report to Buttonwood at regular intervals on Your experience of the Buttonwood Software and, in particular, to report any problems, non performance or similar issues.
You agree to promptly complete any Preview Reports in a format reasonably requested by Buttonwood.
You will provide such follow up reports, or supplementary information, as are reasonably requested by Buttonwood following submission by You of the Preview Reports.
You agree to attend any meetings as are reasonably requested by Buttonwood to discuss the outcome of the Preview or such other issues as may be identified during the Preview Period. Such meetings must be held at a mutually convenient time and may be in person, by phone or video link.
You acknowledge that there is no restriction on the use which Buttonwood may make of any information gained as a result of the trialing of the Buttonwood Software under this Agreement to the extent that such information may affect the future functionality, performance or features of the Buttonwood Software. Without limiting the foregoing, You acknowledge that, subject to Buttonwood observing the confidentiality provisions of this Agreement, You have no interest or entitlement in any future release of the Buttonwood Software even if such release incorporates information, functionality or features identified or recommended during the Preview Period by You.
The Buttonwood Software is provided free of any licence fee during the Free Trial Period.
5. Intellectual Property Rights
Buttonwood retains all rights to the Buttonwood Software and the Documentation not specifically granted in this Agreement.
You acknowledge that Buttonwood owns all Intellectual Property Rights in the Buttonwood Software and Documentation.
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
You must not directly or indirectly do anything that would or might invalidate or put in dispute Buttonwood’s title in the Buttonwood Software or Documentation or any of Buttonwood’s registered or unregistered trade marks (Trade Marks).
You must comply with Buttonwood’s reasonable usage guidelines and directions with respect to the Buttonwood Software and the Trade Marks as notified to you from time to time.
You acknowledge that the Software and its components may contain software licensed from third parties. All rights in and to any such third party software, data and servers are reserved by and remain with the applicable third parties. You agree that such third parties may enforce their rights under this Agreement against you directly in their own name.
You acknowledge and agree that:
- prior to entering into this Agreement You has been given a reasonable opportunity to examine and satisfy Yourself regarding all Services which are the subject of this Agreement;
- at no time prior to entering into this Agreement did You rely on the skill or judgment of Buttonwood and that it would be unreasonable for You to rely on any such skill or judgment; and
- does not warrant that access and use of the Buttonwood Software will be uninterrupted, error-free, that defects will be corrected of that it will be free from virus, spyware or malware (as those terms are generally understood in the IT industry), completely secure or that it will be compatible, or operate in any combination with Your equipment and other software programs which may be selected for use by You;
- does not warrant that the Services will be uninterrupted or fault free or that they will meet Your requirements.
Buttonwood will provide support in relation to the Buttonwood Software as described in the Buttonwood Support Terms.
Support will be provided in accordance with the Service Level Package selected by You.
Buttonwood may, if required by law or reasonably required for security reasons or other proper purpose, change, suspend, or discontinue any aspect of the Buttonwood Software or support including the availability of any software feature, database, or content at any time without prior notice to you. Buttonwood may also impose limits on certain features and services or restrict your access to parts or all of the Buttonwood Software, support or the Buttonwood Internet site(s) without notice or, to the extent permitted by law, liability.
8. Cloud Subscriptions
The Buttonwood Software contains links to the websites of various Cloud Service Providers. The Buttonwood Software will evaluate Cloud Subscriptions but does not endorse or guarantee any Cloud Subscriptions.
You are responsible for entering into, and maintaining, appropriate agreements with Cloud Service Providers for the Cloud Subscriptions which you require. You may purchase Cloud Subscriptions directly with the relevant Cloud Service Provider. If you wish Buttonwood to purchase a Cloud Subscription on your behalf, You must complete the relevant fields and submit the required information through Buttonwood for validation. Buttonwood does not warrant that the pricing and terms of any Cloud Subscription as stated by Buttonwood are the best or lowest on the market. You must review the terms and conditions of each Cloud Subscription and if you proceed with the purchase of the Cloud Subscription You agree to be bound by those terms and conditions. A copy of the terms and conditions applicable to the Cloud Subscriptions which Buttonwood can purchase on your behalf can be found here:
Buttonwood is not responsible for providing, and does not warrant the services of, any Cloud Service Provider. Your use of any Cloud Subscription is governed by the terms of your agreement with the relevant Cloud Service Provider, and is at your sole risk. Buttonwood is not responsible in any way for any Cloud Service Provider’s product’s performance, features or failures.
Cloud Subscriptions may be provided on either an annual or month to month basis and may be subject to automatic renewal in accordance with the terms and conditions of each Cloud Subscription. The fees for each Cloud Subscription will be as stated by the relevant Cloud Service Provider from time to time.
The Buttonwood Services are a separate subscription service to the Cloud Subscriptions. Termination of the Buttonwood Services or this Agreement will not terminate Cloud Subscriptions. It is your responsibility to terminate any Cloud Subscription in accordance with the terms of the relevant Cloud Service Provider.
Buttonwood may use and disclose information relating to, or provided by, you (including Confidential Information and Personal Information) to Cloud Service Providers for the purposes of providing the Services to you, including for the purposes of establishing or maintaining a Cloud Subscription for you where you have requested us to do so. You authorise Buttonwood to receive usage, performance and billing data from Your Cloud Service Providers on Your behalf.
You acknowledge and agree that:
- You have sole responsibility for the content of your data, including its accuracy, quality, integrity, legal compliance, reliability and appropriateness; and
- Your data is your property and You are responsible for maintaining backups of the data and for the recovery of data in the event of an interruption to a Cloud Subscription.
You must pay to Buttonwood any:
- Service Fees;
- Support Fees;
- Consumption Fees; and
- Cloud Subscription Fees.
The Service Fees, Support Fees, Consumption Fees and Cloud Subscription Fees will be invoiced monthly in arrears in a single invoice unless otherwise stated.
Buttonwood reserves the right to vary the Service Fees, Support Fees, Consumption Fees and Cloud Subscription Fees from time to time by 30 days written notice to You.
Buttonwood may vary the Support Fees if You request a variation to Your Service Level Package.
Each invoice is due and payable by You 10 Business Days after the date of the invoice.
If You fail to pay any amount by the due date for payment:
- interest will accrue on the outstanding balance at the rate of 5% per annum above the National Australia Bank business overdraft rate calculated on a daily basis from the date that the outstanding balance was due and payable to the date it is paid in full; and
- You will be liable for all debt collection fees and charges incurred by Buttonwood, including but not limited to mercantile/debt collection agent’s fees and solicitor’s costs and disbursements.
You acknowledge and agree that exchange rate fluctuations may cause a difference between the estimated amount of Cloud Subscription Fees and Consumption Fees provided to you and the actual cost charged by the Cloud Service Providers.
If You fail to pay any amount due under this Agreement within 45 days of such fees becoming due, or otherwise materially breach Your obligations under this Agreement, Buttonwood may, at its discretion by notice to You and without limiting any other remedies it may have, suspend the provision of any or all of the Services until such time as such material breach or failure has been remedied.
10. GST and taxes
All amounts payable under this Agreement are expressed exclusive of GST.
In respect of any taxable supply, you must pay to Buttonwood an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the consideration for the taxable supply, subject to the receipt by you of a valid tax invoice.
All stamp duties and other government charges in relation to this Agreement must be paid by You.
11. Confidentiality and privacy
A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
A party may:
- use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
- disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is maintained.
Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of Buttonwood’s request or on termination of this Agreement for any reason.
In using the Services or the Buttonwood Software, You must ensure that You are permitted to provide Buttonwood with any personal information You provide to Buttonwood, and that You have made any disclosures or obtained any consents necessary under the Privacy Act.
Buttonwood may use unidentified data regarding Your use of the Buttonwood Services for our internal uses including business development and product improvement.
Buttonwood warrants that it will exercise due care and skill in providing the Services.
Subject to clause 12.1, Buttonwood makes no warranty in relation to the performance of the Buttonwood Software or any outcomes which may be anticipated by You.
You shall at all times indemnify and hold harmless Buttonwood and its officers, employees and agents (“those indemnified”) from and against any Liability reasonably incurred or suffered by any of those indemnified arising from any Claim against those indemnified where such:
Claim is brought by any Cloud Service Provider based on of Your acts or omissions; or
Liability or Claim was caused by any wilful, unlawful or negligent act or omission by You.
In respect of any claim between the parties under or in connection with this Agreement, the parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2002 (NSW) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability Buttonwood which would not have been so apportioned but for such laws.
To the full extent permitted by law and subject to clause 13.8, Buttonwood excludes all liability in respect of loss of data, interruption of business, wasted management time or any consequential or incidental damages, even if Buttonwood has been advised by You or should have reasonably been aware of the possibility of such loss.
To the full extent permitted by law and subject to clause 13.8, except as expressly set out in this Agreement all conditions, warranties, terms and obligations expressed or implied by law or otherwise relating to this Agreement or the performance of the obligations by Buttonwood under this Agreement or to any Services supplied or to be supplied by Buttonwood under this Agreement, are excluded.
To the extent permitted by law and subject to clause 13.8, Buttonwood does not accept any Liabilities incurred by You arising from or relating to:
(a) unauthorised access by any person to the Services;
(b) the modelling and governance data You provide to Buttonwood;
(c) the parameters set by You for the Services; or
(d) loss of data, interruption of business, wasted management time or any consequential or incidental damages, even if Buttonwood has been advised by You or should have reasonably been aware of the possibility of such loss.
Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other condition, implied or imposed under any legislation which cannot lawfully be excluded or limited.
If any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and Buttonwood is able to limit Your remedy for a breach of the Non-Excludable Provision, the liability of Buttonwood for breach of the Non-Excludable Provision is limited to one or more of the following at Buttonwood’s option:
a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; or
b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
Subject to clause 13.8, Buttonwood’s total aggregate Liability for all Claims arising in a given financial year relating to this Agreement, is limited to the fees for the Services actually paid by You to Buttonwood in that financial year (the limit excludes all fees paid in relation to Cloud Subscriptions). A financial year begins on 1 July of each year.
Either party’s Liability for any Claim relating to this Agreement will be reduced to the extent to which the other party contributed to the Liability arising from the Claim.
You may terminate this Agreement at any time after the first anniversary of the Commencement Date by giving a minimum of one month’s notice in writing. Termination of this Agreement will terminate any Service Level Package on foot at the time of termination.
You may terminate a Service Level Package at any time after the Minimum Period.
A party may terminate this Agreement immediately by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice; or
(b) an Insolvency Event occurs, other than an internal reconstruction with notice to the other party.
Termination of this Agreement will not terminate any Cloud Subscriptions. It is your responsibility to terminate any Cloud Subscription in accordance with the terms of the relevant Cloud Service Provider. You are liable to pay us all relevant Cloud Subscription Fees and Consumption Fees which are payable in accordance with your Cloud Subscription arrangements which you have with Your Cloud Service Providers for as long as those arrangements are on foot.
Upon termination or expiry of this Agreement for any reason:
(a) You must cease to use the Services;
(b) your right to use the Buttonwood Software immediately ceases and the licences granted under this Agreement terminate immediately;
(c) you must immediately remove all Buttonwood Software from your computer systems.
(d) You must immediately pay all outstanding invoices; and
(e) Buttonwood may invoice You for any Service Fees, Support Fees, Consumption Fees and Cloud Subscription Fees incurred in relation to the period prior the date of termination or expiry. Buttonwood may also invoice you any other costs incurred by Buttonwood as a result of such expiry or termination, including any minimum term or fee commitments that have been entered into with third parties on your behalf. You agree to pay any such invoices within 10 Business Days of receipt.
Clauses 10, 11, 13, 14.5, 15 and 16 and any other obligations that, by their nature, survive termination or expiry of this Agreement, will survive termination or expiry of this Agreement.
Termination or expiry of this Agreement does not affect any accrued rights or remedies of either party.
15. Dispute Resolution
The parties agree to use reasonable commercial efforts to resolve by negotiation any dispute that arises between them from this Agreement. No party will resort to legal proceedings, or terminate this Agreement, unless the process under this clause 14 has been exhausted, except if it necessary to seek an urgent interim determination or recover unpaid Fees.
If a dispute arises (including a breach or an alleged breach) under this Agreement, which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at the operational level, a party concerned about the dispute will notify the other party. The parties will then endeavour in good faith to agree upon a resolution.
Should the parties fail to reach a solution in accordance with clause 13.2 within 7 days (or such other timeframe agreed between the parties), the parties may agree to mediation in accordance with The Institute of Arbitrators & Mediators Australia Mediation Rules.
If mediation is terminated, or if any party states that it does not wish to proceed with mediation, then any party may:
(a) commence legal proceedings against the others; or
(b) terminate this Agreement in accordance with the provisions in this Agreement.
Unless prevented by the nature of the dispute, the parties will continue to perform this Agreement while attempts are made to resolve the dispute.
Buttonwood may vary this Agreement at any time by giving 30 days notice in writing to You.
You must not assign, subcontract, sublicence or otherwise deal in any other way with any of Your rights under this Agreement without the prior written consent of Buttonwood.
Except as otherwise expressly stated, nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
A provision of or a right under this Agreement may not be waived except in writing signed by the person to be bound.
Buttonwood will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event. Buttonwood will keep You informed in such circumstances and will use reasonable endeavours to rectify the situation.
Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects Buttonwood’s performance under this Agreement for more than thirty (30) consecutive days, you may immediately terminate this Agreement by written notice.
This Agreement is governed by the laws of the Australian Capital Territory and each party submits to the jurisdiction of the courts that exercise jurisdiction in the Australian Capital Territory.