1. Definitions

In this Agreement, terms defined in the Details have the meaning set out there, and the following terms will have the meaning set out below:

Affiliates means, in relation to a party, any entities that control, are controlled by, or are under common control with, that party (where “control” means the power to direct the management, policies or operations of an entity through the ownership of voting shares, by contract or otherwise).

Agreement means these Evolved Subscription Terms and the Details.

Claim means any claim, demand, suit, action or proceeding.

Confidential information of a party, means non-public information of or about that party’s technical, commercial, financial, marketing, strategy or business affairs or plans, its clients, customers, employees, contractors or partners, and any of its trade secrets, know-how, intellectual property and any other information which is by its nature confidential or disclosed in circumstances where it should reasonably be understood to be confidential. The pricing in this Agreement, the SaaS and the Documentation are all our Confidential Information. Customer Data is your Confidential Information.

Customer Data means the data provided, submitted or input into the SaaS by or on your behalf or any of the Respondents.

Customer Environment means your business’ technology environment in which the SaaS is used (including systems, devices and other technology infrastructure, software, applications, connectivity and storage).

Data Breach means an eligible data breach as defined in the Privacy Act 1988 (Cth) which has or is reasonably expected to have occurred in respect of any personal information contained in Customer Data.

Details means the Details set out in Part A of this Agreement.

Documentation means the documentation provided with or published in relation to the SaaS (including any specifications, guides, policies or manuals), as updated from time to time by us at the following URL (or such other URL as many be notified to you from time to time): https://help.humanlistening.com/humanlistening/Content/HomeHL.htm.

Fees means the fees specified in the Details for the SaaS and Support Services plus any other charges we may impose under this Agreement.

GST means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property means any intellectual property rights and other proprietary rights (including copyright, patent and design rights), rights in and to databases, trade secrets, know-how and Confidential Information, and all related rights recognised anywhere in the world.

Liability means any loss, damages, cost or expense.

Outputs means reports, outputs and results of, or produced using, the SaaS.

Renewal Period has the meaning given in clause 2.

Respondent means any person who participates in a survey, questionnaire or other interaction administered by or on your behalf through the SaaS.

Restrictions means the details, authorisations, restrictions and usage limits or measures specified in the Details.

SaaS means the software-as-a-service Product(s) set out in the Details.

Security Policy means our policies designed to protect Customer Data, as available at https://www.theevolvedgroup.com/policy-information-handling-and-privacy/ as we update it from time to time.

Service Levels means service levels for the SaaS specified in the Details (if any).

Support Policy means our SaaS support policy set out in the Details, as we update it from time to time. Any update will be generally applicable to all SaaS customers and will not materially reduce the scope or level of support.

Support Services means the support and maintenance we provide for the SaaS in accordance with clause 4.

Term means the term of this Agreement as determined by clause 2.

Third Party Hosting Provider means any third party hosting services provider we use from time to time to host, support or facilitate the delivery of the SaaS.

2. Term

a. This Agreement starts on the Start Date and continues for the Trial Period specified in the Details. You may cancel this Agreement at no cost by notifying us in writing before the end of the Trial Period. If you do not do this, the Agreement continues for the rest of the Initial Term.

b. At the end of the Initial Term, unless either party provided a cancellation notice in writing at least thirty (30) days’ before, this Agreement automatically renews for additional periods of the same duration as the Initial Term (Renewal Period(s)).

3. Access to and use of Services

a. We will provide you and Permitted Customer Affiliates named in the Details access to the SaaS during the Term, subject to this Agreement. We use commercially reasonable efforts to meet the Service Levels during the Term, but failure to achieve the Service Levels is not a breach of this Agreement.

b. You must only use and permit the use of the SaaS in accordance with the Restrictions and you must ensure that your Affiliates and Respondents (and their use of the SaaS) also comply.

4. Support Services

a. We use commercially reasonable efforts to provide the Support Services in accordance with our Support Policy and subject to you providing all information, access (including remote access) and assistance we need to enable us to diagnose, recreate or investigate any Support Services request.

b. We have the right to use any reports, requests or other feedback we receive in connection with the Support Services for our business purposes including in product planning, and to improve our services and offerings (but we will not identify you in such use).

5. Customer Responsibilities

a. You will ensure the Customer Environment meets the requirements in the Documentation. You are responsible for all hardware, software and network connectivity required to access the SaaS.

b. You may use and permit the use of the SaaS, Documentation and Support Services only for your internal business purposes and Customer Environment, and in accordance with the Documentation. Apart from making the SaaS available to Respondents for your internal business purposes, you must not resell or use it to operate as a service bureau, subscription service or service provider to others, or in any other way share, sublicense, transfer, distribute or provide third party access to the SaaS.

c. You must comply with all applicable laws in using the SaaS. We will comply with all laws generally applicable to us in our capacity as a service provider, when making available the SaaS.

d. You must not, and must not permit or allow any person (including permitted Affiliates or Respondents) to do or attempt any of the following:

• i. dissemble, decompile, reverse engineer, tamper with, modify, alter, enhance, adapt or translate the SaaS, the concepts behind them or any copyright or proprietary notice on it; ii. use the SaaS or Documentation to develop other software, application or services; iii. avoid, circumvent or disable any security device, procedure, protocol or mechanism that we may include, require or establish with respect to, or within, the SaaS or use the SaaS in a manner that results in gaining unauthorised access to any data, or which breaches, defeats or circumvents any system or network security measures; iv. disclose any benchmarking, testing or comparison of the SaaS with other products; v. use the SaaS for any obscene, offensive, fraudulent or illegal activity or content or in a manner that infringes any third party rights or in a manner we consider may harass, harm, or cause nuisance or disruption to any person, or transmit unsolicited or abusive messages, viruses or other harmful code or matter; or vi. use the SaaS in connection with any systems, software, environment or Customer Environment where you are not properly and fully authorised to do so.

6. Fees and Taxes

a. You must pay the Fees. Fees are non-refundable unless otherwise stated or required by law. Fees are payable annually in advance unless otherwise stated. We will issue a tax invoice for Fees when due. You must pay the Fees within thirty (30) days of the invoice date.

b. If you do not pay the Fees when due, we may, without limiting our other rights: (i) suspend your access to the SaaS; (ii) charge interest on the outstanding Fees at the rate of 2% above the rate prescribed under section 2 of the Penalty Interest Rates Act 1983 (Vic), accruing on a daily basis from the date the Fees were due for payment; and/or (iii) recover on demand as a debt due from you, any debt collection and other costs and expenses (including legal fees) incurred.

c. At the end of the Initial Term and each Renewal Period, the Fees will increase by the Fee Adjustment specified in the Details (or if none is specified, two per cent (2%)).

d. You are liable to pay, at our then-current standard applicable Fees (without discount), for any actual usage of the SaaS in excess of the applicable Restrictions.

e. Fees are stated excluding GST. You must pay any applicable GST at the same time and in the same manner as the relevant Fees. We will issue a tax invoice for such GST amounts.

f. You are responsible for all taxes and duties (value-added, withholding, sales, service, use, consumption, excise or any other kind), other than taxes imposed on our income (Taxes). Fees are stated excluding any Taxes. If you are required by law to pay or withhold any Taxes, or if we are required to pay any Taxes, you indemnify us for those amounts so that the total amount we receive and retain is the amount we originally invoiced.

7. Intellectual Property

a. You have no Intellectual Property or other rights in the SaaS, Documentation or any other material or document we provide. We reserve all rights in the SaaS, Documentation and any other material we provide or make available (other than the rights we specifically grant you in this Agreement).

b. We acknowledge that, except to the extent you grant us rights in this Agreement, you retain all rights (including Intellectual Property and rights with respect to Confidential Information) in Customer Data.

c. We own all Intellectual Property in Outputs, subject to paragraph (b). We grant you a non-exclusive, perpetual, non-transferable and worldwide right to use Outputs for your internal business purposes.

8. Warranties and Exclusions

a. We warrant that the SaaS will operate substantially in conformance with the Documentation when used, installed, configured and operated in accordance with the Documentation and this Agreement. This warranty does not apply during a free Trial Period.

b. If we are in breach of the warranty in clause 8.a and you have promptly notified us and provided all details we reasonably requested to enable us to investigate it, we will use commercially reasonable efforts to rectify it by providing the Support Services or otherwise repairing, modifying or re-performing the SaaS. If we determine that such rectification is not feasible within a reasonable time using commercially reasonable efforts, we may instead terminate this Agreement and provide a pro-rata refund of any Fees you pre-paid for the affected SaaS (based on the unexpired portion of the pre-paid Term). This clause is your sole remedy for a breach of the warranty in clause 8.a.

c. We provide the SaaS, Documentation and Support Services “as is” and do not warrant that they will be error-free, defect-free, without interruption, or that all identified defects will be corrected. Except where stated in this Agreement, to the extent permitted by law, we give no (and expressly disclaim) representations, warranties or guarantees of any kind (including those implied by law) relating to the SaaS, Documentation, Support Services or Outputs, including, without limitation, as to (i) satisfactory quality, (ii) fitness for a particular purpose, (iii) suitability for you, the Customer Environment or your intended use, (iv) the results to be achieved from using the SaaS, (v) safety from viruses or any other harmful code, third party attack, disruption or unauthorised access; or (vi) availability.

d. Nothing in this Agreement modifies, displaces or excludes any statutory provision (including any provision of the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded. If such statutory provision implies or imposes a guarantee, warranty or liability, then where permitted by law, our liability under such provision will be limited at our discretion to:

i. in the case of goods: the replacement of the goods or the supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and

ii. in the case of services: the supply of the services again or payment of the cost of having the services supplied again.

e. You acknowledge that we use Third Party Hosting Providers and have no actual control over the availability, quality or other features of hosting services.

9. Data, Security and Privacy

a. You authorise, license and request us, our subcontractors and subprocessors (including Third Party Hosting Providers) to access, provide, store, reproduce and modify Customer Data for the purpose of performing the SaaS, providing the Support Services and otherwise administering and performing this Agreement.

b. You authorise, license and request us, our subcontractors and subprocessors (including Third Party Hosting Providers) to use, access, provide, store, reproduce, modify and disclose.

c. You warrant that you have all necessary authorisations, consents, approvals and licences required under applicable laws and contractual obligations to:

i. provide us with access to the Customer Environment as we reasonably need to provide the SaaS, Support Services and assistance, or perform any obligation under this Agreement;

ii. provide us with Customer Data (whether directly or through Respondents), and permit us to use such Customer Data in accordance with this Agreement and to the extent reasonably necessary for us to provide the SaaS, Support Services and perform any other service, assistance or obligation under this Agreement; and

iii. provide us with any personal information you provide (whether directly or through others, including Affiliates) in the Customer Data, in connection with your account or access credentials, or otherwise, including that all required consents have been obtained from affected individuals, and to permit us to use such personal information in accordance with this Agreement.

d. You authorise us to monitor, investigate and collect data with respect to the use of and access to the SaaS (although we have no obligation to do so). We may do this to provide the SaaS, Support Services, administer and perform this Agreement, calculate the Fees and monitor or assess your compliance with this Agreement. You agree to provide all relevant records and access (including remote access to the Customer Environment) we reasonably require to assess your compliance.

e. You acknowledge that Customer Data are stored in a public cloud environment provided by a Third Party Hosting Provider who we determine from time to time. We will not store or transmit Customer data outside of the Hosting Location(s) listed in the Details without your prior written consent.

f. You confirm you have reviewed the Documentation and determined the suitability of the SaaS (and any related hosting environment) for your intended purposes, Customer Data, policies, compliance obligations and processing instructions.

g. We are responsible for maintaining industry standard virus protection and cybersecurity measures intended to protect against unauthorised access, use, disclosure modification and destruction of the SaaS and any Customer Data hosted in it. We do not guarantee that viruses or other harmful code will not be introduced into the SaaS or Customer Data, or that the SaaS or Customer Data will be free from cyber security threats, attacks, unauthorised access, disruptions or incidents.

h. You are responsible for maintaining industry standard virus protection and cybersecurity technology in Customer Environment, as well as any additional measures required by the Documentation.

i. You are responsible for the security of your SaaS passwords and access credentials, and solely responsible and liable for all activities, transactions and actions carried out using your password(s) and/or access credentials (even if you did not authorised it) as if they were your own.

j. We are not liable for any loss of or corruption to Customer Data and cannot guarantee against its loss or corruption. However, we agree to store and manage Customer Data in accordance with our Security Policy, as updated from time to time.

k. If Customer Data contains personal information, we agree to manage such information in accordance with our privacy policy available at https://www.theevolvedgroup.com/privacy-policy/. Each party will comply with the privacy laws (including the Privacy Act 1988 (Cth)) applicable to it in connection with performing this Agreement, and you acknowledge that you have assessed the SaaS as being adequate and suitable for your business’ compliance requirements.

l. We will maintain an appropriate program reasonably designed to detect, contain, respond to and recover from any Data Breach. If we become aware of a Data Breach, we will: (i) take steps to minimise the Data Breach; (ii) take appropriate measures to secure the relevant personal information and prevent a recurrence of the Data Breach; (iii) provide reasonable information to you about our remediation efforts and make any applicable notifications to a regulator; (iv) to the extent available to us, provide you with reasonable details of the Data Breach, including, a description of the personal information subject to the Data Breach and date and time of the Data Breach; and (v) take appropriate steps to remediate the root cause(s) of the Data Breach and give you a summary of the results of the investigation and any remediation efforts we undertake.

m. On your request, we will provide reasonable information about our Customer Data handling processes and practices, and reasonable assistance required for you to respond to and manage any privacy request, complaint or investigation you receive which concerns Customer Data.

10. Liability

a. The limitations set out in this clause 10 apply to the extent permitted by law and to all Claims and Liabilities arising in connection with this Agreement, irrespective of whether they arise under contract or indemnity, statute, strict liability, tort (including negligence), equity or otherwise, and irrespective of whether the Claim or Liability was foreseeable, notified to us or within our contemplation.

b. Our (and our Affiliates’) aggregate liability for all Claims and Liabilities in connection with this Agreement is limited to a maximum of the total Fees you paid for the relevant SaaS during the twelve (12) months immediately preceding the date of the first event giving rise to a Claim or Liability.

c. In no event are we (or our Affiliates) responsible for any indirect, incidental or consequential Liability of any kind, or for any economic loss, loss of profits, revenue, use, savings, reputation, business, business opportunity, goodwill, or for any business interruption, loss of use, any loss or corruption of data (including Customer Data), or for the acts, omissions, products or services of third parties.

d. Each party’s liability in connection with this Agreement will be reduced proportionately to the extent that the negligence of the other party contributed to the liability.

e. Despite any express warranty, indemnity, service level or other term of this Agreement, we have no responsibility, obligation (including any obligation to indemnify) or any Liability with respect to the SaaS, Documentation or Support Services arising from: (i) modifications made to the SaaS (other than by us); (ii) combination of the SaaS with anything outside the Customer Environment; (iii) use of the SaaS with any system or environment that does not meet the requirements set out in the Documentation; (iv) the use of the SaaS in a manner not permitted by, or prohibited by, this Agreement, or any misuse of the SaaS; (v) any technical factor outside our actual control, including, without limitation, Customer’s Environment (or any changes to such environment), Customer Data, network connectivity or internet, or third parties; (vi) any Third Party Hosting Providers; (vii) a breach of any law or third party rights caused by you, your Affiliates, Respondents or Customer Data; (vii) any SaaS which you failed to cease using after being notified to do so; (viii) any SaaS for which you have failed to pay the applicable Fees when due; or (ix) unavailability of the SaaS during scheduled or emergency maintenance.

11. Indemnities

a. Subject to clauses 11.b–11.d, we indemnify you against any court judgment or award, or any amount we agreed to in settlement by in a third party Claim against you where the Claim is based on an allegation that the SaaS or Documentation, when used in accordance with this Agreement, infringes a third party’s copyright or patent rights, or misappropriates a third party trade secret. This indemnity does not apply in the event that any of the circumstances referred to in clause 11.e applies.

b. We indemnify you under paragraph 11.a subject to you providing us with prompt notice of the Claim, the sole right to control and defend the Claim and any negotiations for settlement (at our own cost), and all cooperation, information and assistance we reasonably request in connection with the Claim. You may participate in any Claim, and engage legal representation, at your own discretion and cost.

c. If the SaaS becomes, or we determine that it may become, the subject of a Claim of or similar to the kind referred to in paragraph 11.a, we will use commercially reasonable efforts to arrange (at our own cost) the right for you to continue using the SaaS, or modify the SaaS (without substantially diminishing its functionality) so as to remove the potential infringement. If we determine that neither option is practicable, we may terminate any affected Agreement and issue a pro-rata refund of any pre-paid Fees (based on the unexpired Term of the relevant SaaS).

d. This clause 11 sets out your sole and exclusive remedy in connection with any actual or alleged intellectual property rights infringement in connection with the SaaS and Documentation.

e. You indemnify us and our Affiliates against all Claims and Liabilities arising from or relating to:

i. your breach of this Agreement and any warranty you give in this Agreement; and

ii. any allegation by a third party that Customer Data or our use of it in accordance with this Agreement breaches the intellectual property, privacy or personal data, confidentiality or other rights of any person.

12. Termination and Suspension

a. Either party may terminate this Agreement (and in our case, we may suspend the SaaS or Support Services) immediately by written notice to the other party, if the other party:

i. has committed any material breach of this Agreement incapable of remedy or where capable of remedy, has failed to remedy the breach within the reasonable time frame (not less than thirty (30) days) specified by the first party;

ii. enters or threatens to enter into any form of bankruptcy, insolvency, liquidation or administration, whether voluntary or involuntary, or is wound up or undergoes a similar event or ceases (or threatens to cease) to conduct its business in the ordinary way.

b. Without limitation, any breach of Customer’s obligations in clause 5 or clause 9, or any failure to pay Fees when due, constitutes a “material breach”.

c. We may also suspend or terminate the SaaS and/or this Agreement immediately in writing if:

i. our right or ability to provide the SaaS (or any part of it) ceases or is suspended for any reason (including where a Third Party Hosting Provider ceases to provide services for any reason) or is reasonably anticipated to be the subject of a Claim;

ii. required by applicable law in our opinion;

iii. reasonably necessary to preserve, protect, maintain or rectify the security, integrity, operation, viability or stability of the SaaS; or iv. we withdraw or discontinue the SaaS (but we will provide at least thirty (30) days’ notice).

d. On the expiry of the Term or on termination of this Agreement for any reason:

i. you must cease using the SaaS and its rights to use the SaaS, Documentation and Support Services will immediately cease and be withdrawn;

ii. you must pay all Fees and other amounts due under this Agreement;

iii. if we terminated the Agreement under clause 12.a, all Fees remaining to be invoiced and paid in respect of the remaining Term will become immediately due and payable;

iv. if you terminated the Agreement under clause 14.a or we did under clause 12.c.iv, we will refund any pre-paid Fees in respect of any unexpired portion of the Term; and

v. provided you have paid all Fees and other amounts then owing, we will within sixty (60) days provide you or your nominated service provider a copy of the Customer Data, in a format reasonably determined by us, subject to you providing any required input, cooperation and assistance to facilitate the same. Following this period, we will delete your Customer Data and have no obligation to archive or retain it. You may request additional disengagement assistance which we may agree to provide subject to an agreed statement of work and your payment of the Fees we specify for such assistance.

13. Confidentiality

a. A party must not use or copy the Confidential Information of the other party except to perform its obligations under this Agreement, and must not disclose or publish the Confidential Information of the other party unless contemplated or permitted by this Agreement.

b. A party is not taken to have breached the requirements of this clause if it discloses Confidential Information of the other party:

i. with the written permission of the other party;

ii. to its professional legal and financial advisers who are subject to confidentiality obligations;

iii. in our case, to our subcontractors, consultants and service providers (such as Third Party Hosting Providers) in connection with the performance of this Agreement;

iv. where the disclosure is required by law, and the party so required has provided to the other party reasonable notice and details of the requirement, and if requested, all reasonable assistance in lawfully opposing the requirement; or

v. if the information in question was:

I. already in the public domain (other than as the result of a breach of this clause 13); or

II. obtained (without any condition or obligation of confidentiality) or derived independently of the information provided by the disclosing party.

14. Legal Compliance In performing this Agreement, we will comply with the following laws, and we will maintain our own policies and procedures designed to ensure compliance:

a. all applicable modern slavery laws in Australia including the Modern Slavery Act 2018 (Cth);

b. all applicable laws relating to anti-bribery, corruption and improper payments including the Criminal Code Act 1995 (Cth).

15. General

a. Notices: Notices may be sent to a party at the address set out in the Details (including by email). A party can update its address details by notice in writing.

b. Force Majeure: Neither party will be considered in breach of this Agreement where the relevant failure (other than failure to pay Fees) is directly or indirectly caused by an event beyond its actual or reasonable control including, without limitation, any act of God, or natural disaster, flood, fire, war or terrorism, epidemic or pandemic, riot, labour disturbance (including strike and lockout), network intrusion, change in law or any other events, whether similar or not. The affected party’s obligations will, to the extent affected by the relevant event, be suspended for the duration of that event.

c. Entire agreement: This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes all prior understandings. Any terms appearing on Customer purchase orders or similar documents or in other communications, have no force or effect.

d. Execution: This Agreement may be executed in counterparts and using electronic signatures.

e. Assignment: You may not assign or transfer any rights or obligations under this Agreement without our prior written consent. We may assign, transfer or novate any or all rights or obligations under this Agreement to an Affiliate or where we do so generally for a restructure, reorganisation, sale, transfer or merger of our business or operations.

f. Variations and changes: We may vary this Agreement to reflect changes in applicable laws, technology, viability of the SaaS, industry practice and SaaS usage patterns by notice, with the variation to take effect on the next renewal date. Variations will not apply retrospectively. We may also make variations prior to the renewal date on thirty (30) days’ notice, but you may terminate this Agreement during such notice period if the variation has a material adverse impact on you.

g. Governing law: This Agreement is governed by the laws of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.

h. Subcontracting: We may in our discretion subcontract any of the SaaS, Support Services and any other obligations, without notice (and substitute any subcontractors), but we will remain responsible to you for the performance this Agreement.

i. Publicity: We may use your name and logo (subject to any marketing policies provided to us in writing with respect to the use of the logo) in our customer lists, marketing materials (including online materials) and any discussions with current or prospective customers and business partners to identify you as a customer of Evolved or the SaaS.