Xemplo Customer Agreement

This Agreement is between Customer and Xemplo (which is part of the EPG Group). “Customer” means the entity on behalf of which this Agreement is accepted. Xemplo means the EPG Group entity that owns or operates the cloud technology and services platform (Products) that Customer uses or accesses listed at https://www.xemplo.com/product-specific-terms/.

If you (the person accepting this Agreement) are accepting this Agreement on behalf of your employer or another entity, you agree that: (i) you have full legal authority to bind your employer or such entity to this Agreement, and (ii) you agree to this Agreement on behalf of your employer or such entity.

If you are accepting this Agreement using an email address from your employer or another entity, then: (i) you will be deemed to represent that party, (ii) your acceptance of this Agreement will bind your employer or that entity to these terms, and (iii) the word “you” or “Customer” in this Agreement will refer to your employer or that entity.

By clicking on the “Agree” (or similar button or checkbox) that is presented to you at the time of placing an Order, or by using or accessing our Products, you confirm you are bound by this Agreement. If you do not wish to be bound by this Agreement, do not click “Agree” (or similar button or checkbox), download the Products, or use or access the Products. 

1.       Overview.

This Agreement applies to Customer’s Orders for Products and related Support and Advisory Services. The terms of this Agreement apply to both Cloud Products and other services, although certain terms apply only to Cloud Products, as specified below. In addition, some Products are subject to additional Product-Specific Terms, and Support and Advisory Services are subject to the applicable Documentation and Policies.

2.       Use of Products.

‍2.1.  Permitted Use. Subject to this Agreement and during the applicable Subscription Term, Xemplo grants Customer a non-exclusive, worldwide right to use the Cloud Products and related Support and Advisory Services for its and its Affiliates’ internal business purposes, in accordance with the Documentation and Customer’s Scope of Use, and otherwise to access other Products in accordance with this Customer Agreement and Product-Specific Terms.

‍2.2.  Restrictions. Except to the extent otherwise expressly permitted by this Agreement or Product-Specific Terms or a Reseller Agreement, Customer must not (and must not permit anyone else to): (a) rent, lease, sell, distribute or sublicense the Products or (except for Affiliates) include them in a service bureau or outsourcing offering, (b) provide access to the Products to a third party, other than to Users, (c) charge its customers a specific fee for use of the Products, but Customer may charge an overall fee for its own offerings (of which the Products are ancillary), (d) use the Products to develop a similar or competing product or service, (e) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Products, (f) modify or create derivative works of the Products, (g) interfere with or circumvent Product usage limits or Scope of Use restrictions, (h) remove, obscure or modify in any way any proprietary or other notices or attributions in the Products, or (i) violate the Acceptable Use Policy.

‍2.3.    DPA. The DPA applies to Customer’s use of Products and related Support and Advisory Services and forms part of this Agreement.

3.       Users.

‍3.1.    Responsibility. Customer may authorize Users to access and use the Products, in accordance with the Documentation and Customer’s Scope of Use. Customer is responsible for its Users’ compliance with this Agreement and all activities of its Users, including Orders they may place, apps and Third Party-Products enabled, and how Users access and use Customer Data.

‍3.2.  Login Credentials. Customer must ensure that each User keeps its login credentials confidential and must promptly notify Xemplo if it becomes aware of any unauthorized access to any User login credentials or other unauthorized access to or use of the Products.

‍4.       Cloud Products. This Section 4 only applies to Cloud Products.

‍4.1.  Customer Data. Xemplo may process Customer Data to provide the Cloud Products and related Supportor Advisory Services in accordance with this Agreement.

‍4.2.  Security Program. Xemplo has implemented and will maintain an information security program that uses appropriate physical, technical and organizational measures designed to protect Customer Data from unauthorized access, destruction, use, modification or disclosure, as described in its Security Measures.

‍4.3.  Data Retrieval. The Documentation describes how Customer may retrieve its Customer Data from the Cloud Products.

‍4.4.   Removals and Suspension. Xemplo has no obligation to monitor Customer Data. Nonetheless, if Xemplo becomes aware that: (a) Customer Data may violate Law, Section 2.2 (Restrictions), or the rights of others or (b) Customer’s use of the Cloud Products threatens the security or operation of the Cloud Products, then Xemplo may: (i) limit access to, or remove, the relevant Customer Data, or (ii) suspend Customer’s or any User’s access to the relevant Cloud Products. Xemplo may also take any such measures where required by Law, or at the request of a governmental authority. When practicable, Xemplo will give Customer the opportunity to remedy the issue before taking any such measures.

5.       Customer Obligations.

‍5.1.  Disclosures and Rights. Customer must ensure it has made all disclosures and obtained all rights and consents necessary for Xemplo to use Customer Data and Customer Materials to provide the Products, Support or Advisory Services. The Customer indemnifies Xemplo for any breach of this term.

‍5.2.  Product Assessment. Customer is responsible for determining whether the Products meet Customer’s requirements and any regulatory obligations related to itsintended use.

6.       Third-Party Code and Third-Party Products.

‍6.1.  Third-Party Code. This Agreement applies to open source software and commercial third-party software Xemplo includes in the Products.

‍6.2.  Third-Party Products. Customer may choose to use the Products with third-party platforms, apps, add-ons, services or products, including offerings made available (“Third-Party Products”). Use of such Third-Party Products with the Products may require access to Customer Data and other data by the third-party provider, which, for Xemplo will permit on Customer’s behalf if Customer has enabled that Third-Party Product. Customer’s use of Third-Party Products is subject to the relevant provider’s terms of use, not this Agreement. Xemplo does not control and has no liability for Third-Party Products.

‍7.       Support and Advisory Services.

Xemplo will provide Support and Advisory Services as described in the Order and applicable Policies. Xemplo’s provision of Supportor Advisory Services is subject to Customer providing timely access to Customer Materials and personnel reasonably requested by Xemplo.

‍8.       Ordering Processand Delivery.

No Order is binding until Xemplo provides its acceptance, including by sending a confirmation email, providing access to the Products, or making license or access keys available to Customer. No terms of any purchase order or other business form used by Customer will supersede, supplement, or otherwise apply to this Agreement or Xemplo. Xemplo will deliver login instructions for Products electronically, to Customer’s account (or through other reasonable means) promptly including upon receiving payment of the fees if that is a prerequisite.

9.       Billing and Payment.

‍9.1.        Subscription Fees.
(a) Direct Purchases. If Customer purchases directly from Xemplo, fees and any payment terms are specified in Customer’s Order with Xemplo or any Product-Specific Terms. If payment terms are not specified then Xemplo will invoice on a monthly basis in arrears. All payments, inclusive of applicable taxation, must be paid within seven (7) days or any longer period contained on the invoice.
(b) Resellers. If Customer purchases through a Partner or Reseller, Customer must pay all applicable amounts directly to the Reseller.
(c)  Renewals. Unless otherwise specified in an Order and subject to the Product, Support or Advisory Services continuing to be generally available, a Subscription Term will automatically renew at Xemplo’s then current rates for: (i) if Customer’s prior Subscription was for a period less than twelve (12) months, another Subscription Term of a period equal to Customer’s prior Subscription Term, or (ii) if Customer’s prior Subscription Term was for twelve (12) months or more. If no minimum term is included in the Order, then the default minimum term of the first Subscription Term is 24 months. Either party may elect not to renew a Subscription Term by giving notice to the other party before the end of the current Subscription Term. Customer must provide any notice of non-renewal by contacting Xemplo’s support team or by otherwise providing Xemplo notice.
(d) Increased Scope of Use. Customer may increase its Scope of Use by placing a new Order or modifying (by mutual agreement with Xemplo) an existing Order. Unless otherwise specified in the applicable Order, Xemplo will charge Customer for any increased Scope of Use at Xemplo’s then-current rates, prorated for the remainder of the then-current Subscription Term.
(e) Refunds. All fees and expenses are non-refundable, except as otherwise provided in this Agreement. For any purchases Customer makes through a Reseller, any refunds from Xemplo payable to Customer relating to that purchase will be remitted by that Reseller, unless Xemplo specifically notifies Customer otherwise at the time of refund.
(f) Credit Cards. If Customer uses a credit card or similar online payment method for its initial Order, then Xemplo may bill that payment method for all Fees, renewals, additional Orders, overages to scopes of use, expenses, and unpaid fees, as applicable.

‍9.2.        Taxes.
(a) Taxes Generally. Fees and expenses are exclusive of any sales, use, GST, value-added, withholding or similar taxes or levies that apply to Customer’s Orders. Other than taxes on Xemplo’s net income, Customer is responsible for any such taxes or levies and must pay those taxes or levies, which Xemplo will itemize separately, in accordance with an applicable invoice.
(b) Withholding Taxes. To the extent Customer is required to withhold tax from payment to Xemplo in certain jurisdictions, Customer must provide valid documentation it receives from the taxing authority in such jurisdictions confirming remittance of withholding. This documentation must be provided at the time of payment of the applicable invoice to Xemplo
(c) Exemptions. If Customer claims exemption from any sales tax, VAT, GST or similar taxes under this Agreement, Customer must provide Xemplo a valid tax exemption certificate or tax ID at the time of Order, and after receipt of valid evidence of exemption, Xemplo will not include applicable taxes on the relevant Customer invoice.

‍9.3.        Suspension for Non-payment. Xemplo may suspend Customer’s rights to use Products or receive Support or Advisory Services if payment is overdue, and Xemplo has given Customer no fewer than ten (10) days’ written notice.

10.    Xemplo Warranties.

‍10.1.     Performance Warranties. Xemplo warrants to Customer that: (a) the Products will operate in substantial conformity with the applicable Documentation during the applicable Subscription Term, (b) Xemplo will not materially decrease the functionality or overall security of the Products during the applicable Subscription Term, and (c) Xemplo will use reasonable efforts designed to ensure that the Cloud Products, when and as provided by Xemplo, are free of any viruses, malware or similar malicious code (each, a “Performance Warranty”).

‍10.2.     Performance Warranty Remedy. If Xemplo breaches a Performance Warranty and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, Xemplo will use reasonable efforts to correct the non-conformity. If Xemplo determines such remedy to be impracticable, either party may terminate the affected Subscription Term. This is Customer’s exclusive remedy and Xemplo’s entire liability for breach of a Performance Warranty.

‍10.3.     Exclusions. The warranties in this Section 10 (Xemplo Warranties) do not apply to: (a) the extent the issue or non-conformity is caused by Customer’s unauthorized use or modification of the Products,(b) unsupported releases of Cloud Clients, or(c) Third-Party Products.10.4.     Disclaimers. Except as expressly provided in this Section 10 (Xemplo Warranties), the Products, Support and Advisory Services and all related Xemplo services and deliverables are provided “AS IS.” Xemplo makes no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or non-infringement. Xemplo does not warrant that Customer’s use of the Products will be uninterrupted or error-free. Xemplo is not liable for delays, failures or problems inherent in use of the internet and electronic communications or other systems outside Xemplo’s control.

‍11.    Term and Termination.

‍11.1.     Term. This Agreement commences on the date Customer accepts it and expires when all Subscription Terms have ended.

‍11.2.     Termination for Convenience. Customer may terminate this Agreement or a Subscription Term for any reason upon 30 days’ notice but only after the completion of the first Subscription Term. Subject to Section 10.3 (Return Policy), Customer will not be entitled to any refunds as a result of exercising its rights under this Section 11.2, and any unpaid amounts for the then-current Subscription Terms and any related service periods will become due and payable immediately upon such termination.

‍11.3.     Termination for Cause. Either party may terminate this Agreement or a Subscription Term if the other party:(a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer terminates this Agreement or a Subscription Term in accordance with this Section 11.3, Xemplo will refund to Customer any pre-paid, unused fees for the terminated portion of the Agreement or applicable Subscription Term.

‍11.4.     Effect of Termination. Upon expiration or termination of this Agreement or a Subscription Term: (a)Customer’s rights to use the applicable Products, Support or Advisory Services will cease, (b) Customer must immediately cease accessing the Cloud and (c)Customer must delete (or, on request, return) all license keys, access keys and any Product copies. Following expiration or termination, unless prohibited by Law, Xemplo may delete Customer Data. Xemplo may, in its sole discretion, agree to allow the customer temporary ongoing access to the Product for the limited purpose of retrieving Customer Data and/or agree a specified date, time when that may occur.

‍11.5.     Survival. These Sections survive expiration or termination of this Agreement: 2.2 (Restrictions),4.2 (Security Program), 9.1 (Fees),9.2 (Taxes), 10.4 (Disclaimers), 11.4 (Effect of Termination), 11.5 (Survival), 12 (Ownership), 13 (Limitations of Liability), 14 (Indemnification by Xemplo), 15 (Confidentiality), 16.4 (Disclaimer), 17 (Feedback), 19 (General Terms)and 20 (Definitions).

‍12.    Ownership.

Except as expressly set out in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement. As between the parties, Customer owns all intellectual property and other rights in Customer Data and Customer Materials provided to Xemplo or used with the Products. Xemplo and its licensors retain all intellectual property and other rights in the Products, any Support and Advisory Services deliverables and related source code, Xemplo technology, templates, formats and dashboards, including any modifications or improvements.

‍13.    Limitations of Liability.

‍13.1.     Damages Waiver. Except for Excluded Claims or Special Claims, to the maximum extent permitted by Law, neither party will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.

‍13.2.     General Liability Cap. Except for Excluded Claims or Special Claims, to the maximum extent permitted by Law, each party’s entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid to Xemplo for the Products, Support and Advisory Services giving rise to the liability during the twelve (12) months preceding the first event out of which the liability arose. Customer’s payment obligations under Sections 10.1 (Fees) and10.2 (Taxes) are not limited by this Section 13.2.

‍13.3.     Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Section2.2 (Restrictions) or Section 5 (Customer Obligations),(b) either party’s breach of Section 15 (Confidentiality) but excluding claims relating to Customer Data or Customer Materials, or (c) amounts payable to third parties under Xemplo’s obligations in Section 14(Indemnification by Xemplo).

‍13.4.     Special Claims. For Special Claims, Xemplo’s aggregate liability under this Agreement will be the lesser of: (a) two times (2x) the amounts paid to Xemplo for the Products, Support and Advisory Services giving rise to the Special Claim during the twelve (12) months preceding the first event out of which the Special Claim arose, and (b) AUD$2,000,000. “Special Claims” means any unauthorized disclosure of Customer Data or Customer Materials caused by a breach by Xemplo of its obligations in Section 4.2 (Security Program).

‍13.5.     Nature of Claims and Failure of Essential Purpose. The exclusions and limitations in this Section 13 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.


14.    Indemnification.

‍14.1.      IP Indemnification. Xemplo must: (a) defend Customer from and against any third-party claim to the extent alleging that the Products, when used by Customer as authorized by this Agreement, infringe any intellectual property right of a third party (an “Infringement Claim”), and (b) indemnify and hold harmless Customer against any damages, fines or costs finally awarded by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by Xemplo resulting from an Infringement Claim.
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‍14.2.      Procedures. Xemplo’s obligations in Section 14.1 (IP Indemnification) are subject to Customer providing: (a) sufficient notice of the Infringement Claim so as to not prejudice Xemplo’s defense of the Infringement Claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the Infringement Claim, and (c) all reasonably requested cooperation, at Xemplo’s expense for reasonable out-of-pocket expenses. Customer may participate in the defense of an Infringement Claim with its own counsel at its own expense.

‍14.3.      Settlement. Customer may not settle an Infringement Claim without Xemplo’s prior written consent. Xemplo may not settle an Infringement Claim without Customer’s prior written consent if settlement would require Customer to admit fault or take or refrain from taking any action (other than relating to use of the Products).

‍14.4.      Mitigation. In response to an actual or potential Infringement Claim, Xemplo may, at its option: (a) procure rights for Customer’s continued use of the Products, (b) replace or modify the alleged infringing portion of the Products without reducing the overall functionality of the Products, or (c) terminate the affected Subscription Term and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.

‍14.5.     Exceptions. Xemplo’s obligations in this Section 14 (Indemnification by Xemplo) do not apply to the extent an Infringement Claim arises from: (a) Customer’s modification or unauthorized use of the Products, (b) use of the Products in combination with items not provided by Xemplo (including Third-Party Products), or (c) Third-Party Products, Customer Data or Customer Materials.

14.6.     Exclusive Remedy. This Section 14 (Indemnification by Xemplo) sets out Customer’s exclusive remedy and Xemplo’s entire liability regarding infringement of third-party intellectual property rights.

‍15.    Confidentiality.

‍15.1.     Definition. “Confidential Information” means information disclosed by one party to the other under or in connection with this Agreement that: (a) is designated by the disclosing party as proprietary or confidential, or (b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Xemplo’s Confidential Information includes any source code and technical or performance information about the Products. Customer’s Confidential Information includes Customer Data and Customer Materials.

‍15.2.     Obligations. Unless expressly permitted by the disclosing party in writing, the receiving party must: (a) hold the disclosing party’s Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, and (b) only use such Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose such Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Xemplo, the subcontractors referenced in Section 19.11 (Subcontractors and Affiliates)), provided the receiving party remains responsible for their compliance with this Section 15 (Confidentiality)and they are bound to confidentiality obligations no less protective than this Section 16 (Confidentiality).

‍15.3.     Exclusions. These confidentiality obligations do not apply to information that the receiving party can demonstrate: (a) is or becomes publicly available through no fault of the receiving party, (b) it knew or possessed prior to receipt under this Agreement without breach of confidentiality obligations, (c) it received from a third party without breach of confidentiality obligations, or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the disclosing party in advance and cooperates, at the disclosing party’s cost, in any reasonable effort to obtain confidential treatment.

‍15.4.     Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or anticipated breach of this Section 15(Confidentiality).

16.    Free or Beta Products.

‍16.1.     Access. Customer may receive access to certain Products or Product features on a free, fully discounted or trial basis, or as an alpha, beta or early access offering (“Free or Beta Products”). Use of Free or Beta Products is subject to this Agreement and any additional terms specified by Xemplo, such as the applicable scope and term of use.

‍16.2.     Termination or Modification. At any time, Xemplo may terminate or modify Customer’s use of (including applicable terms) Free or Beta Products or modify Free or Beta Products, without any liability to Customer. For modifications to Free or Beta Products or Customer’s use, Customer must accept those modifications to continue accessing or using the Free or Beta Products.

‍16.3.     Pre GA. Free or Beta Products may be inoperable, incomplete or include errors and bugs or features that Xemplo may never release, and their features and performance information are Xemplo’s Confidential Information.

16.4.     Disclaimer. Not withstanding anything else in this Agreement, to the maximum extent permitted by Law, Xemplo provides no warranty, indemnity, service level agreement or support for Free or Beta Products and its aggregate liability for Free or Beta Products is limited to AUD$100.

‍17.          Feedback.

If Customer provides Xemplo with feedback or suggestions regarding the Products or other Xemplo offerings, Xemplo may use the feedback or suggestions without restriction or obligation.

‍18.          Publicity.

‍Xemplo may identify Customer as a customer of Xemplo in its promotional materials. Xemplo will promptly stop doing so upon Customer notice. It may take up to 30 days to implement this request.

19.          General Terms.

‍19.1.     Compliance with Laws. Each party must comply with all Laws applicable to its business in its performance of obligations or exercise of rights under this Agreement.

‍19.2.     Assignment.(a) Customer may not assign or transfer any of its rights or obligations under this Agreement or an Order without Xemplo’s prior written consent. However, Customer may assign this Agreement in its entirety (including all Orders) to its successor resulting from a merger, acquisition, or sale of all or substantially all of Customer’s assets or voting securities, provided that Customer provides Xemplo with prompt written notice of the assignment and the assignee agrees in writing to assume all of Customer’s obligations under this Agreement and complies with Xemplo’s procedural and documentation requirements to give effect to the assignment.(b) Any attempt by Customer to transfer or assign this Agreement or an Order, except as expressly authorized above, will be null and void.(c)      Xemplo may assign its rights and obligations under this Agreement (in whole or in part) without Customer’s consent.

‍19.3.     Governing Law, Jurisdiction and Venue. (a) This Agreement is governed by the laws of the State of New South Wales, with the jurisdiction and venue for actions related to this Agreement in the state of New South Wales.

‍19.4.     Notices.(a) Except as specified elsewhere in this Agreement, notices under this Agreement must be in writing and are deemed given on: (i) personal delivery, (ii) when received by the addressee if sent by a recognized overnight courier with receipt request,(iii) the third business day after mailing, or (iv) the first business day after sending by email, except that email will not be sufficient for notices regarding Infringement Claims, alleging breach of this Agreement by Xemplo, or of Customer’s termination of this Agreement in accordance with Section 11.3 (Termination for Cause). (b) Notices to Customer must be provided to the billing or technical contact provided to Xemplo, which may be updated by Customer from time to time in Customer’s account portal. However, Xemplo may provide general or operational notices via email, on its website or through the Products.

‍19.5.     Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of a conflict among the documents making up this Agreement, the main body of this Agreement (i.e., Sections 1 through 20, inclusive) will control, except that the Policies, Product-Specific Terms and DPA will control for their specific subject matter.

‍19.6.      Other Xemplo Offerings. Xemplo makes available other offerings that can be used with the Products which, in some cases, are subject to separate terms and conditions. For clarity, this Agreement controls over any such terms and conditions with respect to Customer’s use of the Products.

‍19.7.     Interpretation, Waivers and Severability. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Waivers must be granted in writing and signed by the waiving party’s authorized representative. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

‍19.8.     Changes to this Agreement. (a) Xemplo may modify this Agreement (which includes the Policies, Product-Specific Terms and DPA) from time to time, by posting the modified portion(s) of this Agreement on Xemplo websites. Xemplo must use commercially reasonable efforts to post any such modification at least thirty (30) days prior to its effective date. (b)      For free subscriptions, modifications become effective during the then current Subscription Term, in accordance with Xemplo’s notice. (c) For paid subscriptions: (i)  except as specified below, modifications to this Agreement will take effect at the next Order or renewal unless either party elects to not renew pursuant to Section 9.1(c) (Renewals), and(ii) Xemplo may specify that modifications will become effective during a then-current Subscription Term if:(A) required to address compliance with Law, or (B) required to reflect updates to Product functionality or introduction of new Product features. If Customer objects, Customer may terminate the remainder of the then-current Subscription Term for the affected Products as its exclusive remedy. To exercise this right, Customer must notify Xemplo of its termination under this Section 19.9(c)within thirty (30) days of the modification notice, and Xemplo will refund any pre-paid fees for the terminated portion of the applicable Subscription Term.

‍19.9.     Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement(except for a failure to pay fees) due to events beyond its reasonable control and occurring without that party’s fault or negligence.

‍19.10.  Subcontractors and Affiliates. Xemplo may use subcontractors or its Affiliates in the performance of its obligations under this Agreement, but Xemplo remains responsible for its overall performance under this Agreement and for having appropriate written agreements in place with its subcontractors to enable Xemplo to meet its obligations under this Agreement.

‍19.11.  Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

‍19.12.  No Contingencies. The Products, Support and Advisory Services in each Order are purchased separately and not contingent on purchase or use of other Xemplo products and services, even if listed in the same Order. Customer’s purchases are not contingent on delivery of any future functionality or features.

20.          Definitions.

‍“Acceptable Use Policy” means Xemplo’s acceptable use policy available at https://www.xemplo.com/acceptable-use-policy/.

“Advisory Services” means advisory services as described in the Product-Specific Terms.

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

“Agreement” means this Xemplo Customer Agreement, as well as the Product-Specific Terms, the DPA and the Policies.

“Cloud Products” means Xemplo’s cloud products, including client software for its cloud products (“Cloud Clients”).

“Customer Data” means any data, content or materials provided to Xemplo by or at the direction of Customer or its Users via the Cloud Products, including from Third-Party Products.

“Customer Materials” means materials and other resources that Customer provides to Xemplo in connection with Support or Advisory Services.

“Documentation” means Xemplo’s usage guidelines and standard technical documentation for the applicable Product, available at https://support.xemplo.com/hc/en-au,unless otherwise specified in the Product-Specific Terms.

“DPA” means the Xemplo data processing addendum available at https://www.xemplo.com/data-processing-addendum/.

“Laws” means all applicable laws, regulations, conventions, decrees, decisions, orders, judgments, codes and requirements of any government authority (federal, state, local or international) having jurisdiction.

“Order” means Xemplo’s ordering document or online order specifying the Products, Support or Advisory Services to be provided under this Agreement, accepted by Xemplo in accordance with Section 9 (Ordering Process and Delivery).

“Policies” means the policies made available at https://www.xemplo.com/policies/ including the Privacy Policy.

“Privacy Policy” means Xemplo’s privacy policy available at https://www.xemplo.com/privacy-policy/.

“Products” means the applicable Cloud Products or other services made available by Xemplo in connection with an Order.

“Product-Specific Terms” means product-specific terms that apply only to certain Products, available at https://www.xemplo.com/product-specific-terms/.

“Reseller” means a partner authorized by Xemplo to resell Xemplo’s Products, Support and Advisory Services to customers.

“Reseller Agreement” means an agreement with a partner organisation to resell Xemplo’s Products.  

“Scope of Use” means Customer’s entitlements to the Products specified in an Order, which may include:(a) number and type of Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.

“Security Measures” means Xemplo’s security practices available in the DPA.

“Service Level Agreement” means the service level commitments, if any, for a Cloud Product.

“Subscription Term” means the term for Customer’s use of or access to the Products and related Support and Advisory Services as identified in an Order.

“Support” means the level of support for the Products corresponding to Customer’s Scope of Use.

“User” means any individual that Customer authorizes to use the Products. Users may include: (i) Customer’s and its Affiliates’ employees, consultants, contractors and agents (ii) third parties with which Customer or its Affiliates transact business (iii) individuals invited by Customer’s users (iv) individuals under managed accounts, or (v) individuals interacting with a Product as Customer’s customer.