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Subscription TCs

By signing the Order From and/or accessing the Folktale Platform, you confirm that you are in agreement with and bound by the Subscription Terms and Conditions set out below (these Terms).

You also confirm that you are in agreement with and bound by the Professional Services Terms and Conditions in the Appendix to these Terms (the “PS Terms”) in relation to our performance of Professional Services, including the provision of any Deliverables. The PS Terms form part of these Terms.

The Order Form and these Terms are together referred to herein as “this Agreement”.

FOLKTALE PLATFORM ACCESS
1. These Terms govern your access to and use of the Folktale Platform.
2. We will make the Folktale Platform available to you in accordance with the Order Form and these Terms (your Subscription).
3. You may only use the Folktale Platform for your own internal business purposes in accordance with the Order Form and these Terms. The licence granted to you in this clause 1 is non-exclusive, non-sublicensable and non-transferable and terminates when your Subscription terminates.
4. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Folktale Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking and web servers.

SUBSCRIPTION FEES AND PAYMENT TERMS
1. We will invoice you for the Subscription Fees at the rates set out in the Order Form.
2. All Subscription Fees are payable in advance – either monthly or annually depending on your Subscription Tier.
3. In consideration of us agreeing to provide the Subscription, you agree to promptly pay the Subscription Fees in accordance with this clause 2 and our invoice.
4. Our Subscription Fees are, unless otherwise explicitly stated, quoted exclusive of applicable goods and services tax (GST). GST will, where applicable, be added to our Subscription Fees.
5. You may not withhold from any payment, or offset against any payment, due to us any amount in respect of any amount owed by or claim against us.
6. You must pay the Subscription Fees and all other sums due to us under this Agreement by electronic bank transfer to our nominated bank account within 10 Business Days of the date of our invoice.
7. If you fail to pay us any amount due to us under this Agreement within the required timeframe, we may:
  1. Immediately terminate your Subscription by providing you with written notice of termination;
  2. Terminate any credit facilities extended to you; and
  3. Initiate legal action for recovery of any outstanding amounts owed by you and the costs incurred (including but not limited to legal costs on a solicitor and own Customer basis).
8. Time is of the essence for the payment of amounts due to us by you.
9. You will pay interest on amounts due to us that are over the payment terms at the rate of 2% per month accrued daily and compounded monthly from the date payment is due to the date on which payment is received by us.
10. You will be liable to us for all costs and expenses (including legal costs) incurred by us in collecting any overdue account, or incurred by us due to any breach or default of these terms, and must pay the same to us immediately upon notice or demand.

TERM AND RENEWAL
1. Your Subscription is for the initial term specified in the Order Form (the Initial Term).
2. Your Subscription will automatically renew for a further terms of one year (each a Renewal Term), from the end of the Initial Term or the then-current Renewal Term, unless you or we give at least 28 Business Days notice of termination prior to the end of the Initial Term or Renewal Term, as applicable (the Current Subscription Period). Any updated version of these Terms will apply from the start of the Renewal Period following the relevant update

ADMINISTRATION OF USER ACCOUNTS
1. Access to the Folktale Platform is provided via individual user accounts each associated with a unique email address (User Accounts).
2. You must ensure that the email address associated with each User Account is controlled by a single individual who is an Authorised User.
3. You must ensure that the User Account is used only by the associated Authorised User. You must require that all Authorised Users keep their User Account login and password details strictly confidential and do not share such information with any unauthorised person. You are responsible for any and all actions taken using User Accounts and passwords, and you agree to immediately notify us of any unauthorised use of which you become aware.
4. We will configure the Folktale Platform with User Accounts for the Administrator. Your Administrator is responsible for managing user privileges for all other User Accounts.
5. Unless the Folktale Platform relies on a federated identity service for user authentication, your Administrator will be responsible for creating and deleting User Accounts. You are responsible for the acts and omissions of your Administrator.
6. Where the Folktale Platform relies on a federated identity service for user authentication, users authenticated to your organisation through that federated identity service will automatically be issued with User Accounts within the Folktale Platform, although their user privileges within the Folktale Platform will be as configured by your Administrator.
7. Your Authorised Users must agree to our End User Licence Agreement (EULA). You are responsible for the acts and omissions of all your Authorised Users related to their use of the Folktale Platform and their compliance with the EULA. We may display our EULA to Authorised Users at sign up, account creation or registration. If you use single sign-on (SSO) for identity management such that Authorised Users will bypass these screens and our EULA, you are responsible for displaying our EULA to Authorised Users and for any damages resulting from your failure to do so.
8. We acknowledge that you may impose your own terms and conditions on your Authorised Users in relation to their use of the Folktale Platform. Any such terms and conditions must not in inconsistent with the provisions of these Terms or the EULA. To the extent of any such inconsistency, these Terms and/or the EULA will prevail.
9. The Folktale Platform is not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all Authorised Users are at least 16 years old.
10. Where you are required to specify a domain for the operation of the Folktale Platform, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the Folktale Platform and we will have the right to terminate your Subscription with immediate effect by notice to you.

SERVICE LEVELS AND SITE AVAILABILITY
1. You agree that the Folktale Platform is not designed for time-critical use. We will use commercially reasonable endeavours to ensure that the Folktale Platform will be available to a level sufficient to meet the Availability SLA in the Schedule to these Terms. The calculation of the Availability SLA will exclude:
  1. scheduled downtime, provided that that we give you reasonable notice of such downtime;
  2. emergency maintenance;
  3. any unavailability due to faults or misconfigurations in the networks or systems that you use to access the Folktale Platform; and
  4. unavailability caused by Force Majeure circumstances.
2. If the Availability SLA for the Folktale Platform is breached in a calendar month, you will receive a service credit equal to 10% of the Monthly Subscription Cost. Any service credit that applies will be discounted from the next invoice following the calendar month in which the Availability SLA breach occurred.
3. If the Availability SLA for the Folktale Platform is breached three or more times in any six month period, you may give notice to us cancelling your Subscription, in which case we will refund you an amount equal to the Monthly Subscription Cost for each unused month of the Current Subscription Period, starting from the date of cancellation.
4. For the purposes of clauses 5.2 and 5.3, the Monthly Subscription Cost is the total Subscription Fees that you have paid us in respect of the Current Subscription Period, divided by the number of calendar months in that same period.
5. The remedies set out in clauses 5.2 and 5.3 are the sole and exclusive remedies for any breach of the Availability SLA.

RESTRICTIONS ON USE
1. You must not, and must ensure that your Authorised Users and any other individuals accessing your User Accounts do not, directly or indirectly:
  1. Interfere with or disrupt the Folktale Platform or any related systems;
  2. Reverse engineer, disassemble, decompile, or prepare derivative works of the Folktale Platform or any associated Customer software, or otherwise attempt to access its source code, underlying ideas, algorithms, file formats or non-public APIs;
  3. Upload to the Folktale Platform any material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy or right of publicity, hateful, or otherwise objectionable;
  4. Infringe the intellectual property of any third party in connection with use of the Folktale Platform;
  5. License, sell, rent, lease, lend, transfer, sublicense or otherwise provide access to the Folktale Platform, or utilise the Folktale Platform, for the benefit of a third party (other than one of your Related Companies), including through a service bureau, commercial time-sharing arrangement, or application service provider arrangement;
  6. Circumvent the user authentication or security of the Folktale Platform or any related host, network or account;
  7. Perform any penetration testing on or with respect to the Folktale Platform, including use of any tools, code or instruction intended to fuzz, damage, destroy, alter, reveal any portion or expose vulnerability of the Folktale Platform; or
  8. Make any use of the Folktale Platform that violates any applicable local, state, national, international or foreign law.
  9. Incorporate the Folktale Platform or any component of it into a product or service you provide to a third party;
  10. Remove or obscure any proprietary or other notices contained in the Folktale Platform;
  11. Use the Folktale Platform with the purpose of competing with us or in such a way that has the effect of competing with us, including for competitive analysis or to build competitive products;
  12. Publicly disseminate information regarding the performance of the Folktale Platform; or
  13. Encourage or assist any third party to do any of the foregoing.

SUBCONTRACTING
1. We may subcontract the supply of some or all of the Services to other persons.
2. We will ensure all subcontractors appointed by us to supply Services under these Terms are subject to terms similar to these Terms.
3. If we have disclosed to you that the supply of some or all of the Services will be supplied by a particular subcontractor:
  1. The supply will be a Third Party Supply;
  2. The subcontractor will be Principal; and
  3. The Subscription Fees that we are entitled to are subject to change due to corresponding changes imposed by our subcontractor.

THIRD PARTY SUPPLIES – PASS THROUGH TERMS
1. The terms set out in this clause 8 have priority over any other terms.
2. From time to time we may provide you services (a Third Party Supply) from or on behalf of a third-party provider (the Principal). We may provide a Third Party Supply as principal or as agent.
3. We do not warrant the performance or integrity of any Third Party Supply. We merely pass through to you whatever end-user representations and warranties the Principal provides to or through us with the Third Party Supply.
4. We are not responsible for any acts or omissions of the Principal, for any obligations undertaken or representations that they may make, or for any other products or services they may supply to you, either directly or through us.
5. We have no control over the intellectual property in a Third Party Supply, and therefore do not take any responsibility for any liability arising as a result of the Third Party Supply. We do not indemnify you for claims by third parties that may arise as a result of a Third Party Supply infringing any intellectual property of any third party. We will pass through to you any indemnity or cover provided by the Principal in respect of the Third Party Supply.
6. Your sole and exclusive remedy for any breach of warranty or other liability is as stated in the Principals’ own terms and conditions.

DISCLOSE ALL RELEVANT INFORMATION
1. You must disclose all relevant information to allow us to supply the Folktale Platform and the Services. Without limitation, you will disclose to us:
  1. Accurate, complete and sufficient information to allow us to comply with all laws and regulations concerning the supply of the Folktale Platform and the Services; and
  2. All foreseeable hazards associated with the supply of the Folktale Platform and the Services by us.
2. You confirm that all information provided by you is true, accurate and complete in all material respects, and may be relied upon by us in the supply of the Folktale Platform and the Professional Services.
3. You agree to provide us with reasonable access to such information as reasonably necessary for our provision of the Folktale Platform and the Services. If you do not provide us with timely access to such information, our relevant performance obligations will be suspended until you do so. You retain your rights in any such information that you provide us and we will use such information solely for the purpose of performing our obligations under this Agreement. You represent and warrant that you have all necessary rights in such information to provide them to us for such purpose.

CONFIDENTIALITY
1. We will hold in strict confidence all your Customer Confidential Information. You authorise us to access and process your Customer Confidential Information to the extent necessary to manage the Folktale Platform, and to provide you with any other services that you request from us.
2. Customer Confidential Information on the Folktale Platform will be protected by effective information barriers. However, we may use and disclose Customer Confidential Information where you authorise us to disclose such information (including in these Terms) or where we, or our suppliers and contractors (Authorised Third Parties) must do so by law, subpoenas or court orders.
3. You authorise us to provide our Authorised Third Parties access to your Customer Confidential Information strictly to the extent necessary for them to carry out their functions in hosting, maintaining and supporting the Folktale Platform. We will ensure that all Authorised Third Parties are contractually prohibited from accessing your Customer Confidential Information for any other purpose, and are obliged to treat your Customer Confidential Information as confidential, and to take all reasonable precautions to prevent unauthorised access to your Customer Confidential Information, consistent with the standards generally expected of a highly skilled and experienced IT services provider engaged in the same type of undertaking under the same or similar circumstances.
4. Unless prohibited by legal process from doing so, we will notify you promptly upon becoming aware that we or our Authorised Third Parties are being required to disclose Customer Confirmation Information by law, and at your cost will endeavour to follow your lawful directions in connection with such requirement.
5. The contents of the Order Form and these Terms are confidential to us. You must not disclose our confidential information to any third party except as required by law, and you agree to procure each of your agents, employees and advisors to do the same.
6. You must not use our confidential information for any purpose other than using the Folktale Platform as permitted by these Terms and the Order Form, and performing your obligations and enforcing your rights in connection with this Agreement.

10.7 Except as we may agree otherwise, and subject to any confidentiality undertakings of which we are made aware between you and any other party, you agree that we may include a summary description of all completed supplies of services and pending services which we provide to you for our own promotional purposes.

CONTENT UPLOADED TO THE FOLKTALE PLATFORM
1. The ownership of all Intellectual Property in the content uploaded to the Folktale Platform by you or your Authorised Users (Content) remains vested in the original owner, whether that is you or a Authorised User. Folktale makes no claim of ownership over Content. Folktale is granted a licence in Content for the purpose of providing you with the Folktale Platform and other Services.
2. Folktale has no obligation to monitor Content. Nonetheless, if we deem such action necessary based on potential infringement of third party rights, violation of this Agreement or our content policies in effect from time to time, and/or in response to takedown requests that we receive, we may:
  1. remove Content from the Folktale Platform; or
  2. suspend access to the Folktale Platform as appropriate.

We will use reasonable efforts to provide advance notice of removals and suspensions when practicable, but we have no liability to you for removing or deleting Content from the Folktale Platform or suspending your access to the Folktale Platform, whether notice is provided or not.

We may disclose Content:
1. to the extent required by law, subpoenas or court orders; and
2. to our suppliers and contractors (and their suppliers and contractors) (Authorised Third Parties) to the extent necessary for them to carry out their functions in hosting, maintaining and supporting the Folktale Platform. We will ensure that all Authorised Third Parties are contractually prohibited from accessing Content for any other purpose, and are obliged to treat Content as confidential, and to take all reasonable precautions to prevent unauthorised access to Content, consistent with the standards generally expected of a highly skilled and experienced IT services provider engaged in the same type of undertaking under the same or similar circumstances.

USER PERSONAL INFORMATION
1. We may collect certain data and information about your Authorised Users (User Personal Information) in connection with their use of the Folktale Platform and otherwise in connection with your Subscription. We collect and use all such User Personal Information in accordance with the EULA and our Privacy Policy, to which you and your Authorised Users agree.
2. If you provide us with the User Personal Information of an Authorised User or any other individual, then (without limiting clause 12.3 below), you warrant and represent that you have obtained the consent of such individual to provide us with the User Personal Information for the purposes set out in our Privacy Policy.
3. Each of us agrees to comply with all laws and regulations relating to privacy and the collection and use of User Personal Information and to assist one another in relation to any allegation or claim regarding unauthorised, access, use, processing or disclosure of User Personal Information.

SECURITY
1. For the purposes of this clause 13 and clauses 14.3 and 17 , “the Information and Content” includes Content and User Personal Information, as defined in clauses 11 and 12 above.
2. You agree that we may send, process and store the Information and Content to and in the Folktale Platform’s nominated third party hosting environments and associated data centres.
3. We will procure that physical, technical and administrative security measures are taken to prevent unauthorised access to the Information and Content, and to protect it from unauthorised access, destruction, use, modification, or disclosure.
4. We will notify you promptly if we become aware that the Information and Content is accessed by, or disclosed to, an unauthorised party and will provide such details as we are able to enable you to assess and manage the associated impact.
5. You or your personnel may notify us if at any time you consider the Information and Content has been accessed by, or disclosed to, an unauthorised party.
6. You are responsible for any access obtained by any person (other than our employees, service providers, contractors and agents) to the Information and Content through a User Account created by your Administrator, or through any federated identity service that you have approved as a method for logging in to the Folktale Platform.
7. You agree that the Folktale Platform is not intended as your content management repository or system of record. Accordingly, we will not be considered the holder of record in respect of the Information and Content and you are responsible for backing up the Information and Content, and we will not in any circumstances be liable for loss or corruption of the Information and Content.

FOLKTALE’S INTELLECTUAL PROPERTY
1. The Folktale Platform is made available on a limited access basis, and no ownership right is conveyed to you. We and our licensors have and retain all right, title and interest, including all Intellectual Property rights, in and to the Folktale Platform any Work Product, and all other services and products made available in and through the Folktale Platform. From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, licence, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property rights or otherwise. No Feedback will be considered your Intellectual Property or Confidential Information, and nothing in this Agreement limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback, Background IP, New IP, Derivative Works or otherwise.
2. During the Term, you shall be entitled to use the Background IP, but you must not sub-licence the Background IP and must transfer the Background IP to Folktale or delete the Background IP immediately upon request by Folktale.
3. During your Subscription term, you shall also be entitled to create New IP for use with the Background IP pursuant to the performance of this Agreement, provided that New IP may only be used with the Background IP. Any New IP or Derivative Work or each of them (except Customer Confidential Information or the Information and Content) will upon creation be owned by Folktale and is licensed to you for the Current Subscription Term, subject to this Agreement.

PROFESSIONAL SERVICES
1. From time to time, you and we may agree for us to undertake Professional Services.
2. The fees applicable to our provision of Professional Services are set out in the Order Form, unless otherwise agreed in writing.
3. We will perform Professional Services in accordance with and subject to the PS Terms contained in the Appendix to these Terms.

TERMINATION AND SUSPENSION
1. You or we may terminate your Subscription with immediate effect, by giving notice to the other party, if at the time of the notice:
  1. The other party has committed a material breach of these Terms, the breach has yet to be remedied, and at least 10 Business Days have passed since the terminating party gave notice to the other party advising of the breach and demanding a remedy; or
  2. The other party is in liquidation or receivership, or is insolvent.
2. You may terminate your Subscription for convenience at any time, by giving notice to us.
3. Upon termination of your Subscription for any reason:
  1. if you have not already paid the Subscription Fees or other amounts for the Current Subscription Period, any such fees or amounts that are outstanding will become immediately due and payable; and
  2. in no circumstances will we be required to refund any Subscription Fees or other amounts paid in advance.
4. We may suspend upon notice all or part of the Folktale Platform or our services if we are required to do so to protect our systems or security. We may modify a service from time to time but will not change its fundamental nature.
5. The expiry or termination of your Subscription is without prejudice to any rights that have already accrued to either of us under these Terms.
6. Upon any expiration or termination of your Subscription, you must cease using the Folktale Platform and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request.
7. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise
8. The following provisions will survive any termination or expiration of your Subscription: clause 6 (Restrictions on Use); clause 10 (Confidentiality); clause 14 (Folktale’s Intellectual Property); this clause 16 (Termination and Suspension); clause 17 (Disengagement); clause 18 (Indemnities); clause 20 (Limitation of Liability); clause 25 (Dispute Resolution) and clauses 31 to 36.
9. The provisions of any other clauses which by their nature are intended to survive, will continue in effect after termination or expiry of this Agreement.

DISENGAGEMENT
1. If your Subscription comes to an end for any reason, we will allow you a further period of 60 Business Days to download your Customer Confidential Information and the Information and Content from the Folktale Platform (Disengagement Period).
2. During the Disengagement Period, if and to the extent requested, we will use reasonable efforts to assist you with any action that needs to be taken within the Folktale Platform in order for you to achieve an orderly migration away from the Folktale Platform. We may charge for any such assistance that we provide at your request, at reasonable rates no higher than our standard rates generally offered to our other Customers at the time. At the end of the Disengagement Period, we may revoke all access to the Folktale Platform, and will delete any Customer Confidential Information and the Information and Content stored in the Folktale Platform.

INDEMNITIES
1. We will defend, indemnify and hold harmless you (and your officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) resulting from any claim arising from or related to:
  1. an unaffiliated third party’s allegation that use of our or our service providers’ technology or intellectual property used to provide anything under these Terms infringes the third party’s patent, copyright, trade secret or trademark; or
  2. death, personal injury or damage to tangible property caused by our personnel in their performance of the Professional Services.
2. The obligations and remedies set out in clause 18.1 set out the sole obligations and remedies for the risks and liabilities contemplated in those clauses.
3. You will defend, indemnify and hold harmless us (and our officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) resulting from any claim arising from or related to:
  1. any claims or disputes brought by your Authorised Users arising out of their use of the Folktale Platform.
  2. non-compliance of Authorised Users with the EULA;
  3. acts or omissions of your Administrator for which you are responsible under clause 5; and
  4. breach of any of your obligations under clauses 6 (Restrictions on Use) or clause 14 (Folktale’s Intellectual Property).
4. This indemnification obligations in this clause 18 are subject to the indemnifying party receiving:
  1. prompt written notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice);
  2. the exclusive right to control and direct the investigation, defence or settlement of such claim; and
  3. all reasonable necessary cooperation by the other party at the indemnifying party’s expense.

IMPORTANT - EXCLUSION OF IMPLIED WARRANTIES
1. The only conditions and warranties binding on us in respect of the Services supplied by us (or our employees, servants or agents) to you, are those imposed and required by law to be binding on us (including under the Competition and Consumer Act 2010 (Cth) and applicable state fair trading laws). All other conditions and warranties, whether express or implied by law, in respect of the Services which may apart from this clause be binding on us, are hereby expressly excluded and negated.

IMPORTANT - LIMITATION OF LIABILITY
1. To the fullest extent permitted by law, our liability (if any) arising from a breach of any applicable terms, conditions or warranties is, at our option, limited to, and completely discharged by the supplying of the relevant Services again, or the refund by us of the fee paid for those Services during the period of 12 Months prior to the liability arising.
2. Except to the extent already set out in this clause, we have no liability (including liability for negligence or recklessness) to any person for any loss or damage (direct, consequential or otherwise) suffered or incurred by any person in relation to Services supplied by us (or any of our employees, officers or agents). Without limiting the generality of this limitation, we have no liability for any loss or damage resulting from any failure, defect or deficiency of any kind in the Services, and we are not liable for any loss of profit or special, indirect or consequential damages of any kind.
3. Any valid claim by you against us must be presented in writing to us within a reasonable time, and in no event longer than 60 days after the relevant Services have been supplied. No action may be maintained by you against us unless a timely written claim has been given under this clause, and unless legal action is commenced within 12 months after the supply of the relevant Services.
4. Neither of us is liable for any delay or failure to perform our obligations under these Terms if such delay is due to Force Majeure.
5. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended during the Force Majeure.
6. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 Business Days, either party may then terminate these Terms with notice in writing to the other party.

E-MAIL TRANSMISSIONS

We may correspond with both you and others by e-mail or other electronic means, where appropriate, unless you specifically instruct us to the contrary. As you are aware, e-mail and similar services are not secure and may be read, copied or interfered with in transit or impaired. Therefore, you agree to assume the risks associated with transmission and to release us from any claim you may have arising from transmission defects.

YOUR FEEDBACK AND SUGGESTIONS

If you provide feedback or suggestions for improvement of our services or any associated technology, you agree that the feedback and suggestions are not confidential, and we are free to use and disclose them without any permission from or payment to you.

NATURE OF RELATIONSHIP

We will supply the Services as an independent contractor and neither us nor any of our personnel will (unless otherwise agreed by us) be, or be deemed to be in partnership or in a joint venture relationship with you, or your employee, servant or agent.

OTHER MATTERS
1. You and we will each be responsible for acts and omissions of our respective employees, contractors, officers and agents. These Terms do not confer any benefits on any third party unless it expressly states that it does.
2. All notices must be in writing and addressed to the other party’s nominated representative as identified in the Order Form or as updated to the other party from time to time. For notices given by electronic mail, notices will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
3. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
4. These Terms do not create any agency, partnership or joint venture between the parties.
5. No amendment or variation of the Order Form will be effective unless it is in writing and signed by each party. If we update these Terms then the new version of the Terms will apply for the next Renewal Term that follows the update.
6. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms. All waivers under these Terms must be in writing to be effective.

DISPUTE RESOLUTION
1. All disputes or differences that may arise between us about the construction or effect of these Terms, or our respective rights, duties and liabilities, or any matter or event connected with or arising out of these Terms, must initially be referred on notice to each other party.
2. Either of us may give notice to the other that this clause 25 applies to any dispute arising between us.
3. The notice in clause 25.2 must include a summary of the issues in dispute and notification of a time within 10 Business Days beginning 4 Business Days after the service of the notice, and a place in Brisbane, Australia at which our representatives are to meet to try to resolve the dispute.
4. Our representatives must meet at the time and place specified in the notice to try to resolve the dispute and must, if necessary, continue to negotiate for 2 consecutive Business Days unless they otherwise agree to reconvene.
5. If the dispute has not been resolved by our representatives by the end of the meeting then either party may within 10 Business Days thereafter apply to the President of the Law Society or professional governing body of the Queensland legal profession to appoint a neutral adviser to assist in a further attempt by us in good faith to resolve the dispute by structured negotiations. Such person must act as an expert and not as an arbitrator, and is entitled to appoint such technical experts as he or she considers necessary to assist in seeking to resolve the matter referred to them.
6. If we fail to appoint a neutral adviser within the 10 Business Days referred to in clause 25.5 or we fail to reach agreement in the structured negotiations within 20 Business Days of the neutral adviser being appointed, then any dispute may be referred to a court of competent jurisdiction. Neither party is precluded from taking such interim formal steps as may be considered necessary to protect the party’s position while the mediation or other procedure is pending or continuing.
7. The costs of the neutral adviser must be borne equally between us.

CAPACITY

For the purposes of these terms each party:

Expressly acts, covenants and binds on behalf of itself and on behalf of its related parties (including heirs, successors, permitted assigns, associated entities and legal personal representatives); and
Covenants to procure (to the best of its abilities) the performance by each of its related parties of the terms and conditions contained herein.

SUCCESSORS AND ASSIGNS
1. These Terms apply to and bind the successors and assigns of the parties to these Terms.
2. Notwithstanding Clause 30.1, neither these Terms nor any right or obligation under these Terms are assignable in whole or in part by you, whether by operation of law or otherwise, without our prior written consent.

WAIVER
1. Any waiver or forbearance by us in regard to the performance of these Terms operates only if in writing and applies only to the specified instance, and does not affect the existence and continued applicability of these Terms.
2. No failure or delay on our part in exercising any right, power or privilege under these Terms (and no course of dealing between or among any of the parties) operates as a waiver of any such right, power or privilege.
3. No waiver of any default on our part on any one occasion constitutes a waiver of any subsequent or other default. No single or partial exercise or any such right, power or privilege precludes the further or full exercise of such right, power or privilege.

INVALID PROVISIONS

If any provision of these Terms are held to be illegal, invalid or unenforceable, these Terms must be considered divisible and inoperative as to such provision to the extent it is illegal, invalid or unenforceable. In all other respects these Terms remain in full force and effect.

COSTS

You will bear your own costs in reviewing and executing these Terms.

NOTICES
1. All notices must be in writing and must be given by email transmission to the email address of the party.
2. A notice is given and received upon receipt of electronic confirmation of delivery of the message.

LEGAL EFFECT

The parties intend the provisions of these Terms to be legally binding and enforceable against us.

EXECUTION IN COUNTERPARTs AND CONSENT TO ELECTRONIC SIGNATURES
1. These Terms may be executed in two or more counterparts and execution by each of the parties of any one of such counterparts constitutes due execution of these Terms.
2. The parties hereby consent to execution by way of an electronic signature (including by an encrypted signature applied using a proprietary program (for example DocuSign).

APPLICABLE LAW AND JURISDICTION
1. These Terms are governed by and construed in accordance with the laws of Queensland, Australia.
2. The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland, Australia in respect of any claim, dispute or difference arising out of or in connection with these Terms.

ENTIRE AGREEMENT
1. The Order Form, these Terms, the PS Terms and any other terms incorporated by reference into the Order Form (collectively, the Agreement) constitute the sole and entire understanding with respect to the subject matter of the Agreement and the Agreement and supersede all prior discussions, proposals, representations and understandings, written or oral.
2. To the extent there is any conflict between these Terms and the Order Form, these Terms prevail, in each case except to the extent that the Order Form specifically states that it overrides or modifies these Terms, and then only in the context of the applicable Order Form.

INTERPRETATION
1. In these Terms unless the context indicates a contrary intention:
  1. The singular includes the plural and conversely;
  2. A gender includes all genders;
  3. If a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  4. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
  5. A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or annexure to, these Terms;
  6. A reference to an agreement or document (including these Terms) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by these Terms or that other agreement or document;
  7. A reference to a party to these Terms or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);
  8. A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
  9. A reference to conduct includes, an omission, statement or undertaking, whether or not in writing;
  10. A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;
  11. A reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
  12. The meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions;
  13. References to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing; and
  14. Nothing in this agreement is to be interpreted against a party solely on the ground that the party put forward this agreement or any part of it.

DICTIONARY

In these Terms the following expressions have the meanings assigned to them respectively unless those meanings are repugnant to the context or subject matter:

Administrator means an employee or on-staff contractor of your organisation, or of one of your Related Companies that is nominated by you and accepted by us as the administrator for your access to the Folktale Platform;
Authorised User means an employee or on-staff contractor of your organisation, or of one of your Related Companies;
Availability SLA is the service level specified in the Order Form;
Background IP means Intellectual Property that:
- is owned by Folktale prior to the commencement of your Subscription, including (without limitation):
  - rights of Intellectual Property in the Folktale Platform and the Documentation; and
  - Folktale’s proprietary process for producing supercut compilations from individual video content contributions; and
- is acquired or created by Folktale during or after your Subscription term.
Business Day means a weekday (excluding a public holiday) in Queensland, Australia;
Customer Confidential Information means all information that we acquire through our work for you, and that concerns your business or your instructions to us;
Confidential Information means any information coming to a party by virtue of being a party to these Terms, except so far as that information is then in the public domain other than as a result of a breach by the party of these Terms;
Derivative Work means a work of authorship based on one or more works, including, without limitation, the Background IP and New IP, which, if prepared without Folktale's authorisation would constitute an infringement of copyright in the Background IP. The term "Derivative Work" does not include the Background IP upon which the Derivative Work is based;
Documentation means the documentation and guides related to the Folktale Platform;
EULA means our End User Licence Agreement that your Authorised Users must agree to before using the Folktale Platform;
Feedback means comments, questions, ideas, suggestions or other feedback relating to the functionality and performance of the Folktale Platform, including identification of potential errors or improvements.
Folktale Platform means the Folktale proprietary engagement and mobile storytelling software-as-a-service platform, as described in the Order Form;
Force Majeure means a circumstance beyond the reasonable control of the parties that results in a party being unable to observe or perform on time an obligation under these Terms. Such circumstances include but are not be limited to:
- acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
- acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
- strikes;
Intellectual Property means all industrial and intellectual property rights including, without limitation, any copyright, patents, trademarks, service marks, design rights or eligible layout rights (whether registered or not), rights to apply for registration of any of these rights, innovations, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, databases, logos, domain names, business and trade names, Confidential Information, know-how and advertising material;
New IP means any Intellectual Property first created or developed by you or by one or more of your Authorised Users in any format to, without limitation, amend, vary, enhance, customise, translate, condense, transform, expand or adapt the Background IP.
Order Form means the order form to which these Terms are annexed and form part;
Payment Terms means the terms within which the Subscription Fees are due and payable as specified in the Order Form;
Professional Services means services provided by us to you including the preparation of templates, workflows and other content for use through the Folktale Platform; and/or the preparation and establishment of bespoke sites, reports, data analytics or other services for use through the Folktale Platform;
PS Terms means the Professional Services Terms and Conditions contained in the Appendix to these Terms.
Related Companies means Related Bodies Corporate as defined in section 50 of the Corporations Act 2001 (Cth);
Services means our supply of the Folktale Platform, the Professional Services and any advice, recommendations, information, rights and services that we supply to you under these Terms;
State means Queensland, Australia;
Subscription Fee means the fees payable for your Subscription as specified in the Order Form and these Terms;
User Accounts is defined in clause 4.1 of the Terms.
Work Product means the product or output of Professional Services.

SCHEDULE

SERVICE LEVEL AGREEMENT

Availability SLA

The Folktale Platform will meet the following service levels:

Service Measure

Our Commitment How we measure thisFolktale Platform AvailabilityIn-person (virtual) services will be available 75% of Business HoursFolktale Platform Availability will be measured at the end of each calendar month, as follows:

Calculated as ( A – B ) / AA = Total Business Hours in the relevant calendar monthB = Total Business Hours during the relevant calendar month where the Folktale Platform is unavailable due to acts or omissions of Folktale, not including:scheduled downtime, provided that that we give you reasonable notice of such downtime; emergency maintenance; any unavailability due to faults or misconfigurations in the networks or systems that you use to access the Folktale Platform; andunavailability caused by Force Majeure circumstaFor this purpose, Business Hours means Monday to Friday, 9am to 5pm in the time zone of Queensland, Australia, excluding public holidays observed in that State.

APPENDIX

PROFESSIONAL SERVICES TERMS AND CONDITIONS

The following additional terms and conditions (“PS Terms”) apply to Folktale’s performance of Professional Services associated with or supplementary to Customer’s use of the Folktale Platform.

Term
1. These PS Terms will be coterminous with the Subscription Terms unless otherwise agreed between Folktale and Customer.
2. Termination of these PS Terms will not affect the accrued rights and remedies of either party.
Performance of Professional Services / Provision of Deliverables
1. Folktale will:
  1. perform the Professional Services and provide the Deliverables with reasonable skill and care, taking into account Customer’s instructions and information supplied by Customer for the purposes of those Professional Services; and
  2. provide such information in relation to the supply of the Professional Services and Deliverables as may reasonably be requested by Customer from time to time.
2. Customer will provide Folktale with reasonable cooperation in relation to the Professional Services and Deliverables.
3. Each party must notify the other party in writing immediately upon becoming aware of the existence or possibility of a Conflict of Interest and comply with any reasonable direction given by the other Party in relation to managing that Conflict of Interest.
Personnel
1. Folktale will ensure that:
  1. it has sufficient Personnel available to provide the Professional Services and Deliverables;
  2. Personnel have the appropriate skills, training, experience and knowledge to perform the work to which they are allocated;
  3. Personnel comply with all of the provisions of these PS Terms; and
  4. Key Personnel devote substantially their full time and effort to the provision of the Professional Services and Deliverables.
Compliance

Folktale will comply with all applicable laws and obtain and maintain any licences, authorisations, consents, approvals and permits required by applicable laws for the provision of the Services and Deliverables.

Contractual relationship
1. No exclusivity: Customer acknowledges that it has no exclusivity in relation to the provision of Professional Services and Deliverables by Folktale and that Folktale may from time to time provide any services and/or deliverables that are the same as or similar to the Services and Deliverables to other customers, subject to the Intellectual Property provisions in clause [x] of these PS Terms.
2. Relationship: Folktale performs the Professional Services and provides the Deliverables as an independent contractor and neither Folktale nor any Personnel will be, or be deemed to be in partnership or in a joint venture, employment or agency relationship with Customer,.
Fees
1. Customer must pay Folktale the applicable fees for Professional Services and Deliverables in accordance with the Order Form.
2. The general payment terms in clauses 2.4 to 2.10 of the Subscription Terms apply to fees for Professional Services and Deliverables under these PS Terms, unless specified otherwise in the Order Form.
Warranty and Indemnity
1. Folktale warrants and undertakes that the Professional Services and Deliverables, and their possession and use by Customer, will not infringe any third party’s Intellectual Property Rights.
2. Folktale indemnifies Customer against any and all losses which it may suffer or incur, to the extent arising out of any claim made by a third party that the Professional Services or Deliverables, or their possession and use by Customer, infringes any third party’s Intellectual Property Rights
3. Folktale’s indemnity obligation under clause 7(b) will be satisfied to the extent it:
  1. obtains for Customer the right to continue to receive the Professional Services and Deliverables, and to possess and use them; or
  2. re-performs the Professional Services or replaces or modifies the Deliverables so that they become non-infringing.
Liability limitations
1. Subject to subclause 8(b), and to the maximum extent permitted by law, the maximum aggregate liability of each party for all claims under or relating to these PS Terms, whether in contract, in tort (including negligence), in equity, under statute or on any other basis, is limited to an amount equal to the amount Fees paid to Folktale in respect of the Professional Services and Deliverables.
2. In no event will either party’s liability include any amount for indirect, special or consequential loss or damage, loss of profits, loss of opportunity or loss of commercial advantage.
Force majeure
1. A party will not be liable for any failure or delay to perform its obligations under these PS Terms to the extent that such failure or delay is caused by a Force Majeure Event, provided such failure or delay:
  1. could not have been prevented by reasonable precautions; and
  2. could not have reasonably been circumvented by the non-performing party by means of alternate sources or work-arounds.
2. On the occurrence of a Force Majeure Event, the non-performing party must:
  1. promptly notify the other party; and
  2. use its best endeavours to resume performance whenever and to whatever extent possible without delay.
Intellectual property
1. Folktale’s Background Intellectual Property:
  1. All rights to and interests in Folktale’s Background Intellectual Property remain vested solely in Folktale, and Folktale’s ownership of Folktale’s Background Intellectual Property will not be altered or transferred or assigned merely by virtue of its use for the purposes of these PS Terms.
  2. If Customer modifies or enhances Folktale’s Background Intellectual Property (including through a third party), it must assign (or ensure the third-party assigns) to Folktale all Intellectual Property Rights that Customer or the third party has in such modifications or enhancements immediately from creation.
  3. Customer may use Folktale’s Background Intellectual Property solely for the purposes of using the Professional Services and Deliverables and subject to Customer complying with all its contractual obligations to Folktale.
  4. For the avoidance of doubt, the Folktale’s Background Intellectual Property must not be:
    1. sold, assigned, leased or otherwise transferred by Customer; or
    2. commercially exploited by or on behalf of Customer.
2. Developed Intellectual Property:
  1. The ownership of Developed Intellectual Property with the extent reasonably practicable, reflect the relevant contributions of each party to the creation and development of the Developed Intellectual Property.
  2. Each Party grants the other Party a non-exclusive, worldwide, royalty-free right to use, reproduce, adapt, modify, communicate, develop, and otherwise exploit Developed Intellectual Property for the purposes of the performance of any collaborative strategic partnership objectives that may be agreed in writing.
3. Tools and methodologies

For the avoidance of doubt, the Developed Intellectual Property does not include any improvements to Folktale’s existing tools or methodologies that may be created, written or otherwise brought into existence by or on behalf of Folktale in the course of Folktale performing its obligations under these PS Terms. Any such improvements will form part of Folktale’s Background Intellectual Property.

General Provisions of Subscription Terms apply

The provisions in clauses 21 to 36 of the Subscription Terms apply in these PS Terms, unless the context otherwise requires.

Order of Precedence

In the event of any conflict or inconsistency between terms of these PS Terms and the Subscription Terms, these PS Terms apply to the extent that the subject matter is the Professional Services and/or Deliverables.

Additional defined terms in these PS Terms

In addition to the defined terms in clause 38 of the Subscription Terms, the definitions in this clause 13 apply in these PS Terms:

Conflict of Interest includes engaging in any activity which is, or may create an appearance of being, likely to restrict or conflict with the fair and independent performance by Folktale of its obligations under these PS Terms.
Deliverables means any deliverables that are produced by Folktale specificially for the Customer and that are not of general application or utility for Folktale’s business activities
Moral Rights means moral rights within the meaning of Part IX of the Copyright Act 1968 (Cth) and any similar rights that exist, or may come to exist, anywhere in the world.
Personnel means employees, secondees, agents, officers and subcontractors (and in relation to Folktale, includes its partners and in relation to Folktale’s subcontractors, the employees, secondees, agents, officers and contractors of those subcontractors).

Folktale’s Background Intellectual Property means Folktale’s Intellectual Property Rights existing at the date of these PS Terms or developed independently of these PS Terms.