These are the SaaS terms, relevant for those wishing to create an account and utilise the services provided by PagePixels LLC (PagePixels).
Effective starting November 15th 2020
Please read this Agreement carefully and immediately cease using the Services if you do not
agree to it.
- These Terms and Conditions, and any other terms and policies referred to in these
Terms and Conditions, form the agreement between PagePixels
(referred to as “SaaS Provider”, “we” or “us”)
and the user (referred to as “Customer” or “you”),
collectively referred to as the Parties or each a Party, (Agreement).
- The SaaS Provider owns, or holds the relevant rights to, the PagePixels Software and
will license the use of the Software as a service to the Customer.
- The Customer wishes to license the SaaS Services available at https://my.pagepixels.com (Site) from the SaaS
- This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a
license to the Customer to use the SaaS Services. This Agreement is binding on any
use of the Services and applies to the Customer from the time that the SaaS Provider
provides the Customer with an account (Customer’s account) to
access and use the Services (Effective Date).
- By accessing and/or using the Services you:
- warrant to us that you have reviewed this Agreement, including our Website
the Site), with your parent or legal guardian (if you are under 18 years of
age), and you understand it;
- warrant to us that you have the legal capacity to enter into a legally
binding agreement with us or (if you are under 18 years of age) you have
your parent’s or legal guardian’s permission to access and use
the Site and they have agreed to the Terms on your behalf; and
- agree to use the Services in accordance with this Agreement.
- You must not create a Customer account unless you are at least 18 years of age. If
you are a parent or legal guardian permitting a person who is at least 13 years of
age but under 18 years of age (a Minor) create a Customer account and/or use
the Site, you agree to: (i) supervise the Minor’s use of the Site and their
account; (ii) assume all risks associated with, and liabilities resulting from, the
Minor’s use of the Site and their Customer account; (iii) ensure that the
content on the Site is suitable for the Minor; (iv) ensure all information submitted
to us by the Minor is accurate; and (v) provide the consents, representations and
warranties contained in the Terms on the Minor’s behalf.
- By using our Services and subscribing on our Site, you acknowledge that you have
read, understood, and accepted this Agreement and you have the authority to act on
behalf of any person or entity for whom you are using the Services, and you are
deemed to have agreed to this Agreement on behalf of any entity for whom you use the
- On or from the Effective Date and during the Term, the SaaS Provider
agrees to provide the Services in accordance with the terms of this Agreement.
- The Customer agrees the SaaS Provider owns or holds the applicable licences to all
Intellectual Property Rights including but not limited to copyright in the Software
and SaaS Services and any documentation provided with the Services by the SaaS
Provider to the Customer including any Customer configuration documentation.
- The SaaS Provider reserves the right to change or remove features of the SaaS
Services from time to time. Where there is any material alteration to the SaaS
Services in accordance with this clause, the SaaS Provider will provide the Customer
with 20 Business Days’ notice and the Customer agrees that any material
alteration is at the SaaS Provider’s discretion.
- The Parties agree that the SaaS Provider:
- will supply the Services on a non-exclusive basis;
- does not make any warranty or representation as to the ability of the
facilities or services of any third-party suppliers; and
- is not liable for any failure in, fault with or degradation of the Services
if that failure, fault or degradation is attributable to or caused by any
failure of the Customer Environment or the facilities or services of any
- The SaaS Provider reserves the right to refuse any request in relation to the
Services that it deems inappropriate, unreasonable or illegal.
3. SaaS Service Licence
- In consideration for payment of the Fees, the SaaS Provider grants to the Customer a
non-exclusive, non-transferable (except as otherwise permitted under this
Agreement), personal, revocable, licence to access and use the SaaS Services in
accordance with the Service Provider’s intended purpose for the SaaS Services
- The Customer agrees that the SaaS Licence:
- commences from the Effective Date or the day the Customer is granted access
to the SaaS Services by the SaaS Provider, whichever occurs first;
- permits the Customer to use the SaaS Services in accordance with the SaaS
Services’ normal operating procedures; and
- permits the Customer to provide access and use of the SaaS Services to
Authorised Users by embedding the SaaS Services into Customer’s
services to its customers, as applicable.
4. Licence Restrictions
- The Customer must not access or use the SaaS Services except as permitted by the
SaaS Licence and may not do or authorise the commission of any act that would or
might invalidate or be inconsistent with the SaaS Provider’s Intellectual
Property Rights in the SaaS Services or Software. Without limiting the foregoing
provisions, the Customer agrees and acknowledges that it must not and will not
permit any person to:
- resell, assign, transfer, distribute or provide others with access to the
- “frame”, “mirror” or serve any of the SaaS Services
on any web server or other computer server over the Internet or any other
- copy, alter, modify, create derivative works from, reproduce, resell,
transfer to a third party, reverse assemble, reverse engineer, reverse
compile or enhance the SaaS Services or Software (except as expressly
permitted by the Copyright Act 1968 (Cth)); or
- alter, remove or tamper with any trademarks, any patent or copyright
notices, or any confidentiality legend or notice, or any numbers, or other
means of identification used on or in relation to the SaaS Services or
- The Customer must not use the SaaS Services in any way which is in breach of any
statute, regulation, law or legal right of any person within the United States or the
jurisdiction in which the Customer or its Personnel are located.
- The Customer grants to the SaaS Provider a limited licence to copy,
transmit, store and back-up or otherwise access, use or make reference to any
Intellectual Property Rights in the Data:
- to supply the Services including to enable the Customer, its Personnel and
any Authorised Users to access and use the Services;
- to do analysis for the purposes of predictive safety analytics, industry
guideline production and other construction safety-related uses, provide
such Data is re-identified;
- for diagnostic purposes;
- to test, enhance and otherwise modify the Services whether requested by the
Customer or not;
- to develop other Services; and
- as reasonably required for the performance of the SaaS Provider’s
obligations under this Agreement.
- The Customer represents and warrants that:
- any and all Data supplied by the Customer or otherwise accessed by the SaaS
Provider through the provision of the Services is the sole and exclusive
property of the Customer or the Customer has secured any and all
authorisations and rights to use the Data as applicable;
- its Data does not breach any relevant laws, regulations or codes;
- its Data does not infringe the Intellectual Property Rights of any third
- it will comply with all applicable laws and regulations in the jurisdiction
where the Customer accesses and publishes content using the SaaS Services;
- to the extent that the Data contains personal data, it has obtained the
necessary consents in order to transfer or permit access to this Data in
accordance with applicable privacy and data protection laws.
- The Customer acknowledges and agrees that:
- any collation, conversion and analysis of Data performed as part of the
Services whether by the Services or otherwise is likely to be subject to
human input and machine errors, omissions, delays and losses including but
not limited to any loss of Data. The SaaS Provider is not liable for
any such errors, omissions, delays or losses. The Customer acknowledges and
agrees it is responsible for adopting reasonable measures to limit the
impact of such loss or error;
- The SaaS Provider may relocate the Data to another jurisdiction. In
each case, the SaaS Provider will give the Customer 15 Business Days’
notice and use all reasonable endeavours to minimise the effect of such
change on the Customer’s access and use of the Services;
- The SaaS Provider is not responsible for any corruption or loss of any
Data if such corruption or loss is due to an act or omission by the
Customer, its Personnel, its Related Bodies Corporate or any Authorised
- The SaaS Provider is not responsible for the integrity or existence of
any Data on the Customer’s Environment, network or any device
controlled by the Customer or its Personnel.
- The Customer agrees to indemnify and hold the SaaS Provider harmless for
the corruption or loss of any Data controlled or stored by the Customer or any
Related Bodies Corporate, to extent the corruption or loss is not caused by the
negligent act or omission of the SaaS Provider or its Personnel.
6. Support and Service Levels
- During the Term, the SaaS Provider will provide the Support Services in
accordance with the Service Levels during the Support Hours provided that:
- the Customer provides the SaaS Provider with notice for applicable
Services in accordance with any applicable system and processes as set out
on the Site, as applicable; and
- where required, the Customer assists with investigating and ascertaining the
cause of the fault and provides to the SaaS Provider all necessary
information relevant to the fault (including but not limited to what the
Customer or their Personnel has done in relation to the fault).
7. SaaS Provider Additional Responsibilities and Obligations
- The SaaS Provider must maintain commercially reasonable security measures to protect
all Confidential Information in its possession or control, or in the possession or
control of its Personnel, from unauthorised access, use, copying or disclosure.
8. Customer Responsibilities and Obligations
- The Customer will provide all required materials as required by the SaaS Provider
from time to time for the SaaS Provider to perform the Services.
- The Customer must, at the Customer’s own expense:
- provide all reasonable assistance and cooperation to the SaaS Provider in
order to enable the SaaS Provider to supply the Services in an efficient and
timely manner including but not limited to obtaining from Authorised Users
any consents necessary to allow the Customer and its Personnel to engage in
the activities described in this Agreement and to allow the SaaS Provider to
provide the Services;
- use reasonable endeavours to ensure the integrity of the Data;
- permit the SaaS Provider and its Personnel to have reasonable access to
the Customer Environment for the purposes of supplying the Services;
- ensure that only Customer Personnel and Authorised Users will access and use
the SaaS Services and such use and access will be in accordance with the
terms and conditions of the SaaS Licence; and
- make any changes to its Customer Environment that may be required to support
the delivery and operation of any Services.
- The Customer is responsible for its use of the Services and must ensure that no
person uses the Services:
- to break any law or infringe any person’s rights including but not
limited to Intellectual Property Rights;
- to transmit, publish or communicate material that is defamatory, offensive,
abusive, indecent, menacing or unwanted; or
- in any way that damages, interferes with or interrupts the supply of the
- The Customer acknowledges and agrees that:
- it is responsible for all users using the Services including its Personnel
and any Authorised Users;
- its use of the Services will be at its own risk;
- it is responsible for maintaining the security of its account and password.
The SaaS Provider cannot and will not be liable for any loss or damage from
the Customer’s failure to comply with this security obligation;
- the SaaS Provider may alter or update the Customer’s account logins
and passwords and the logins and passwords of any Authorised Users at any
time throughout the Term;
- the Customer is responsible for all content posted and activity that occurs
under their account. This includes content posted by others who have logins
or accounts associated with the Customer’s account;
- if they operate a shared Customer account, make (or allow any third party to
make) material available by means of the Services (including shareable links
and SCORM objects), the Customer is entirely responsible for the content of,
and any harm resulting from, that content. That is the case regardless of
what form the content takes, which includes, but is not limited to text,
photo, video, audio, or code;
- the technical processing and transmission of the Service, including the
Customer’s content, may be transferred unencrypted and involve (a)
transmissions over various networks; and (b) changes to conform and adapt to
technical requirements of connecting networks or devices;
- if the SaaS Provider wishes to alter the delivery of the SaaS Services
which requires a change to the Customer Environment (including
reconfigurations or interface customisations the extent necessary to access
or use the SaaS Services) the Customer will give any assistance to the SaaS
Provider or make any such changes to the Customer Environment, that the
SaaS Provider reasonably requires; and
- the SaaS Provider may pursue any available equitable or other remedy
against the Customer as a result of a breach by the Customer of any
provision of this Agreement.
9. Prohibited Use
- The Customer acknowledges and agrees that this Agreement incorporates by reference
the terms of any acceptable use policy as set out on the SaaS Provider’s
website or as provided to the Customer from time to time.
- The Customer acknowledges and agrees that it must not, and will ensure each
Authorised User does not:
- use the SaaS Services to violate any legal rights of any person, the
Customer or other entity in any jurisdiction;
- use the SaaS Services in relation to crimes such as theft and fraud;
- use the Services in breach of laws relating to the protection of copyright,
trade secrets, patents or other intellectual property and laws relating to
spam or privacy;
- make any unauthorised copy of any copyrighted material owned or licenced by
the SaaS Provider;
- introduce malicious programs into the SaaS Provider System (e.g. viruses,
worms, trojan horses, e-mail bombs);
- reveal the Customer’s account password to others or allow use of the
Customer’s account the to those who are not the Customer’s
Personnel or Authorised Users;
- use the SaaS Services to make fraudulent offers of goods or services;
- use the SaaS Services to carry out security breaches or disruptions of a
network. Security breaches include, but are not limited to, accessing data
of which the Customer is not an intended recipient or logging into a server
or account that the Customer is not expressly authorised to access or
corrupting any data. For the purposes of this paragraph, “security
breaches” includes, but is not limited to, network
sniffing/monitoring, pinged floods, packet spoofing, denial of service, and
forged routing information for malicious purposes;
- use any program/script/command, or sending messages of any kind, with the
intent to interfere with, or disable, any persons’ use of the SaaS
- send any unsolicited email messages through or to users of the SaaS Services
in breach of the Spam Act 2003 (Cth) or to send any form of
harassment via email, or any other form of messaging, whether through
language, frequency, or size of messages; use the SaaS Services in breach of
any person’s privacy (such as by way of identity theft or “phishing”)
is strictly prohibited; and
- use the SaaS Services to circumvent user authentication or security of any
of the Customer’s hosts, networks or accounts or those of the Customer’s
customers or suppliers.
- Each Party will appoint and maintain at all times a relationship manager who will be
responsible for the management of this Agreement.
- The Customer must pay the SaaS Provider:
- the Fee; and
- any other amount payable to the Provider under this Agreement,
without set off or delay using the Payment Method in accordance with the Payment Terms.
All Fees are in USD$, and are payable in advance.
- If the Customer requires the use of a purchase order, the Customer is responsible
for providing the applicable purchase order at the time of purchase. The Customer
acknowledges and agrees to the extent of any inconsistency between this Agreement
and any terms and conditions attached to the Customer’s purchase order, the
terms of this Agreement will prevail. The Parties acknowledge and agree that any
pre-printed standard terms and conditions attached to or on the back of any purchase
order will not apply to this Agreement.
- If there is a Variation, the SaaS Provider will include the Variation Fees due and
payable for the Variation performed in invoice(s) subsequent to the performance of
- If any payment has not been made in accordance with the Payment Terms, the SaaS
Provider may (at its absolute discretion):
- immediately cease providing the Services, and recover as a debt due and
immediately payable from the Customer its Additional Costs of doing so;
- charge interest at a rate equal to 8% per annum, calculated daily and
compounding monthly, on any such amounts unpaid after the due date;
- engage debt collection services and/or commence legal proceedings in
relation to any such amounts; and/or
- report the Customer to any independent credit data
- Subject to clause 12.2, each Party must (and must ensure that its Personnel do):
- keep confidential; and
- not use or permit any unauthorised use of,
all Confidential Information.
- Clause 12.1 does not apply where:
- the information is in, or comes into, the public domain (other than by a
breach of this clause 12 by the relevant Party);
- the relevant Party has the prior written consent of the Party that disclosed
the Confidential Information;
- the disclosure is required by law;
- the disclosure is required in order to comply with this Agreement, provided
that the Party disclosing the Confidential Information ensures the recipient
complies with the terms of this clause 12; and
- the disclosure is to a professional adviser in order to obtain advice in
relation to matters arising in connection with this Agreement and provided
that the Party disclosing the Confidential Information ensures the adviser
complies with the terms of this clause 12.
- Each Party acknowledges and agrees that monetary damages may not be an adequate
remedy for a breach of this clause 12. A Party is entitled to seek an
injunction, or any other remedy available at law or in equity, at its discretion, to
protect itself from a breach (or continuing breach) of this clause 12.
- This clause 12 will survive the termination or expiry of this Agreement.
13. Intellectual Property Rights
- A Party’s ownership of, or any right, title or interest in, any Intellectual
Property Rights in an item which exists prior to the Effective Date (Pre-Existing
Material) will not be altered, transferred or assigned by virtue of
- The Customer grants to the SaaS Provider a non-exclusive, royalty free,
non-transferable and revocable licence to use any of the Customer’s
Intellectual Property Rights including any Pre-Existing Material as reasonably
required for the SaaS Provider to provide the Services to the Customer.
- We do not screen content uploaded onto the SaaS Service, but we have the right (but
not the obligation) in our sole discretion to refuse or remove any content that is
available via the Service that we deem inappropriate, illegal, offensive,
threatening, libellous, defamatory, pornographic, obscene, or otherwise
objectionable or violate any party’s Intellectual Property Rights or this
- We have the discretion (but not obligation) to terminate a Customer’s access
to and use of the Services if, we determine that Customer or its Authorised Users
are repeat infringer of the Intellectual Property Rights of us or third parties.
- This clause 13 will survive the termination or expiry of this Agreement.
- Each Party and its Personnel agrees to comply with its obligations under the Privacy
Act 1988 (Cth) and any other applicable legislation or privacy guidelines
as amended from time to time in relation to personal information collected, used or
disclosed by that Party or its Personnel in connection with the Services and this
- Details on how the SaaS Provider complies with the Privacy Act 1988 (Cth)
and how it collects, discloses, holds or uses personal information is available in the SaaS
website at https://my.pagepixels.com/privacy
or as provided to the Customer from time to time. The SaaS Provider
- The SaaS Provider will take all reasonable steps to notify the Customer in
writing if it becomes aware of any actual, threatened or suspected breach of Data
where such breach involves personal information.
- The Customer warrants that it has obtained each of its Personnel’s informed
consent for the Service Provider, its related bodies corporate, and their respective
Personnel to use, store, manipulate or otherwise deal with the personal information
contained in the Data.
- The Customer must ensure that any collection, processing, use, disclosure and
transfer by the Customer and its Personnel of personal information in connection
with the performance of its obligations under this Agreement complies with all
- The Customer must take all necessary steps to ensure that the personal information
held or accessed by it in connection with this Agreement is protected against
misuse, interference and loss, and from unauthorised access, modification and
disclosure (Data Breach). The Customer will promptly give written notice to the
Service Provider of any actual or suspected Data Breach and will provide
information, assistance and other cooperation as requested by the Service Provider
in respect of the Data Breach.
- The Customer must co-operate with any reasonable requests or directions of the
Service Provider relating to the security, use, disclosure, and transfer of personal
information, the Service Provider’s legal obligations relating to the personal
information, complaints relating to the personal information and the rights of
individuals to access and correct the personal information or opt out of receiving
any communications from or on behalf of the Customer.
- The Service Provider will retain Customer’s information for as long as
Customer account is active or as needed to provide Customer services. Service
Provider will retain and use information as necessary to comply with legal
obligations, resolve disputes, and enforce agreements.
- This clause 14 will survive the termination or expiry of this Agreement.
15. Representations and Warranties
Each Party represents and warrants to each other Party:
- it has full legal capacity and power to enter into this Agreement, to perform
its obligations under this Agreement to carry out the transactions
contemplated by this Agreement, to own its property and assets and to carry
on its business;
- no Insolvency Event has occurred in respect of it;
- this Agreement constitutes legal, valid and binding obligations, enforceable
in accordance with its terms; and
- the execution and performance by it of this Agreement and each transaction
contemplated by it does not conflict with any law, order, judgment, rule or
regulation applicable to it or any document binding on it.
- SaaS Provider
- The SaaS Provider warrants that to the best of its knowledge the Services do
not infringe the Intellectual Property Rights of any third party and there
are no actual or threatened proceedings for any intellectual property
infringements in relation to the SaaS Services.
- The SaaS Provider does not warrant that the Services will be error-free or
will operate without interruption or that, except as set out in this
Agreement, the Services will be performed in the manner intended by the
Customer or the Services will meet the requirements of the Customer.
Each Party makes the representations and warranties in clause 15.1 on
each day on which it is a Party.
16. Indemnity and liability
- The SaaS Provider is liable for the acts and omissions of all its Personnel as if
they were done by the SaaS Provider.
- Despite anything to the contrary (but subject to clause 16.3), to the maximum extent
permitted by the law:
- the SaaS Provider’s maximum aggregate Liability arising from or in
connection with this Agreement (including the Services or the subject matter
of this Agreement) will be limited to, and must not exceed, in any Contract
Year, the total amount of Fees paid to SaaS Provider in the prior Contract
- the SaaS Provider will not be liable to the Customer for: (i) any loss of
profit (including anticipated profit), loss of revenue, loss of business,
loss of goodwill, loss of opportunity, loss of savings (including
anticipated savings), loss of reputation, loss of use and/or loss or
corruption of data ); (ii) lack of access to or use of or inability to
access or use the Service; (iii) any conduct or content of any third party
on the Services; (iv) any content obtained from the Services; nor (v)
unauthorised access, use or alteration of your transmissions or content,
whether under statute, contract, equity, tort (including negligence), indemnity or
- Clause 16.2 will not apply to the SaaS Provider’s Liability to the Customer
under this Agreement for any liability which cannot be excluded or limited by
applicable law, including:
- fraud or criminal conduct; or
- death or personal injury.
- Despite anything to the contrary, to the maximum extent permitted by the law, the
SaaS Provider will have no Liability, and the Customer releases and discharges the
SaaS Provider from all Liability, arising from or in connection with any:
- failure or delay in providing the Services;
- breach of this Agreement; or
- misuse of the Services,
where caused or contributed to by any:
- Force Majeure Event;
- a fault or defect in any item of the Customer Environment; or
- act or omission of the Customer or its Personnel.
- The SaaS Provider uses third-party Service Providers to host the Services. The SaaS
Provider will not be liable for any interruption to the Services, unavailability or
outage, or any interruption, unavailability or outage of the Customer’s
Systems, caused by any such third-party service provider.
- The Customer agrees that, to the maximum extent permitted by the law, this Agreement
excludes all terms, conditions and warranties implied by statute, in fact or on any
other basis, except to the extent such terms, conditions and warranties are fully
expressed in this Agreement.
- The Customer agrees to indemnify, and hold harmless, the Service Provider against
all Liabilities and Claims arising out of or in connection with:
- any and all unauthorised use of the SaaS Service;
- Authorised Users access or use of the Services;
- injury to or death of any person caused by any act or omission by or on
behalf of the Customer or its Personnel; and
- damage to any real or tangible property caused by any act or omission by or
on behalf of the Customer or its personnel.
- This Clause 16 will survive the termination or expiry of this Agreement.
- The Term of this Agreement takes effect on and from the Effective Date and
continues for the Initial Term, if specified, and any Renewal Term, or
otherwise indefinitely, unless this Agreement is terminated earlier in
accordance with the terms of this Agreement.
- Applicable to Initial Terms and any Renewal Term: At least
30 Business Days prior to the expiry of the current Contract Year, either
Party may notify the other that it does not wish for the Term to be renewed
and in such event, this Agreement will expire at the end of the then current
Contract Year. If a Party has not given notice pursuant to this clause, this
Agreement is automatically renewed for another 12-month period (Renewal
- Applicable to Initial Terms and any Renewal
Term: If a Party wishes to vary any of the Terms of this
Agreement, it must give at least 30 Business Days’ notice prior to the
expiry of the current Contract Year to enable the Parties to meet to discuss
any proposed variation.
- Where there is no Initial Term or Renewal Term, Customer may terminate this
Agreement by giving SaaS Provider at least 30 days prior written notice, such
termination will take effect with at the expiry of the then current billing cycle.
- Where there is an Initial Term or Renewal Term, Customer may only
terminate this Agreement in accordance with clause 17.1(b)
- The Customer may terminate this Agreement by giving at least 30 Business Days’
notice to the SaaS Provider, or if the SaaS Provider is in
breach (other than a trivial breach causing no material harm) of any provision of
this Agreement and, where the breach is capable of remedy, the SaaS
Provider has failed to remedy the breach within 30 Business Days’ of receipt
of written notice from the Customer describing the breach and calling for it to be
- The SaaS Provider may terminate this Agreement by giving at least 30 Business
Days’ notice to the Customer if the Customer is in breach (other than a
trivial breach causing no material harm) of any provision of this Agreement and,
where the breach is capable of remedy, the Customer has failed to remedy the breach
within 30 Business Days of receipt of written notice from the SaaS
Provider describing the breach and calling for it to be remedied.
- The SaaS Provider may terminate this Agreement immediately by giving
written notice to the Customer where:
- the Customer undergoes a Change of Control to a competitor of the SaaS
Provider as determined by the SaaS Provider;
- an Insolvency Event occurs in relation to the Customer;
- the Customer commits a breach of this Agreement not capable of remedy; or
- breaches clause 4 (Licence Restrictions) or clause 9 (Prohibited
- The SaaS Provider may suspend overdue accounts without notice to the Customer.
A $300 reinstatement charge applies to reactivate any suspended account once full
payment has been received.
19. Events Following Termination
- Upon termination of this Agreement, the SaaS Provider will:
- immediately stop performing the Services;
- immediately stop placing orders for supplies or services required in
connection with the performance of the Services; and
- promptly return to the Customer or destroy all property, including
Confidential Information, Intellectual Property and Data in its possession
that belongs to the Customer.
- Upon termination of this Agreement, the Customer will immediately:
- cease and desist from any use of the Services;
- return to the SaaS Provider all property, including Confidential
Information and Intellectual Property, in its possession that belongs to the SaaS
- pay the Fees for all Services completed; and
- Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.
- The expiry or termination of this Agreement for any reason will be without prejudice
to any rights or liabilities which have accrued prior to the date of expiry or
termination of this Agreement.
- This clause 19 will survive the termination or expiry of this Agreement.
20. Dispute Resolution
This clause 20 will survive the termination or expiry of this Agreement.
- A Party must not commence court proceedings relating to any dispute arising
from, or in connection with, this Agreement (Dispute)
without first complying with this clause 20 unless:
- that Party is seeking urgent interlocutory relief; or
- the Dispute relates to compliance with this clause.
- Notwithstanding the existence of a Dispute, the Parties must continue to
perform their obligations under this Agreement.
- In the event of a Dispute, the Party claiming there is a Dispute must give
written notice to the other Party or Parties to the Dispute setting out the
details of the Dispute and proposing a resolution (Dispute
- Within 10 Business Days after receipt of the Dispute Notice, each relevant
Party must (if applicable by its senior executives or senior managers who
have authority to reach a resolution on its behalf) meet at least once to
attempt to resolve the Dispute in good faith. All aspects of every
such conference, except for the occurrence of the conference, will be
- If the relevant Parties are unable to resolve the Dispute with 15 Business
Days after receipt of the Dispute Notice, any Party involved in the Dispute
may (by written notice to the other Parties) submit the Dispute to Mediation administrated by the American Arbitration Association
- in good faith;
- in the United States; and
- The Parties agree the SaaS Provider may engage subcontractors to perform the
Services on its behalf
- The Customer will not solicit or entice away, any person or organisation that was an
actual or prospective, client, employee, contractor, representative, agent of, or
developer to, the SaaS Provider, during the Term of this Agreement.
- This clause 22 will survive the termination or expiry of this Agreement.
- A notice or other communication given under this
Agreement must be:
- in writing, in English and signed by the sender; and
- addressed and delivered to the intended recipient by hand, prepaid
post or email in accordance with the notice details last notified by
the recipient to the Parties.
- The Customer’s notice details are set out in the Customer’s
account. The SaaS Provider’s notice details are set out on the Site. A
Party may change its notice details by written notice to the other Parties,
which, for the Customer, is by updating their Account, and for SaaS
Provider, is by updating the Site.
- A notice or communication is taken as having been given:
- when left at a Party’s current address for notices;
- if mailed, on the third Business Day after posting (if delivered to
an address within the same country) or on the tenth Business Day
after posting (if delivered to an address within another country);
- if sent by email, if sent before 5pm on a Business Day in the place
of receipt then on the Business Day when it is sent, otherwise on
the following Business Day.
- This subclause will survive the termination or expiry of this Agreement.
- Force Majeure
If performance of this Agreement or any obligation under this Agreement is
prevented, restricted or interfered with by reasons of Force Majeure and the
affected party unable to carry out its obligations gives the other party prompt
written notice of such event, then the obligations of the affected party invoking
this provision shall be suspended to the extent necessary by such event. The
affected party shall use reasonable efforts under the circumstances to remove such
prevention, restriction or interference or to limit the impact of the event on its
performance and must continue to perform with reasonable dispatch when the Force
Majeure is removed.
Any failure or delay by a Party in exercising a power or right (either wholly or
partially) in relation to this Agreement does not operate as a waiver or prevent
that Party from exercising that power or right or any other power or right. A
waiver must be in writing.
- Powers, rights, and remedies
Except as provided in this Agreement or permitted by law, the powers, rights,
and remedies of a Party under this Agreement are cumulative and in addition to any
other powers, rights and remedies the Party may have.
- Consents or approvals
Except as provided in this Agreement, a Party may give, attach conditions to or
withhold any consent or approval under this Agreement at its sole and absolute
discretion. A Party is not obliged to give reasons for giving or withholding
its consent or approval or for giving its consent or approval subject to conditions.
No Party may assign, transfer or otherwise deal with all or any of its rights or
obligations under this Agreement without the prior written consent of the other
Parties. Any purported dealing in breach of this clause 24.6 is of no force or
- Further assurance
Each Party must promptly do all things and execute all further documents
necessary to give full force and effect to this Agreement and their obligations
under it. This subclause will survive the termination or expiry of this Agreement.
- Costs and expenses
Each Party must pay its own costs and expenses (including legal costs) in
connection with the negotiation, preparation, and execution of this Agreement and
any document relating to it.
- Relationship of Parties
- This Agreement is not intended to create a partnership, joint venture or
agency relationship between the Parties.
- Nothing in this Agreement gives a Party authority to bind any other Party in
- Links to Third Parties
The Services may contain links to third-party web sites or services that are not
owned or controlled by the SaaS Provider.
The SaaS Provider has no control over, and assumes no responsibility for, the
content, privacy policies, or practices of any third party web sites or services.
The Customer further acknowledges and agree that the SaaS Provider shall not be
responsible or liable, directly or indirectly, for any damage or loss caused or
alleged to be caused by or in connection with use of or reliance on any such
content, goods or services available on or through any such web sites or services.
- Independent legal advice
Each Party acknowledges and agrees that it has had an opportunity to read this
Agreement, it agrees to its terms and, prior to executing it, it has been provided
with the opportunity to seek independent legal advice about its terms.
- If a provision of this Agreement is held to be void, invalid, illegal or
unenforceable, that provision must be read down as narrowly as necessary to
allow it to be valid or enforceable.
- If it is not possible to read down a provision (in whole or in part), that
provision (or that part of that provision) is severed from this Agreement
without affecting the validity or enforceability of the remainder of that
provision or the other provisions in this Agreement.
- Entire agreement
The Agreement contains the entire understanding between the Parties, and
supersedes all previous discussions, communications, negotiations, understandings,
representations, warranties, commitments and agreements, in respect of its subject
This Agreement may only be amended by written document executed by all Parties.
- Cumulative Rights
- The rights arising out of this Agreement do not exclude any other rights of
- Each indemnity in this Agreement is a continuing obligation that is separate
and independent from the other obligations of the Parties under this
- A Party is not obliged to take any action, or incur any expense, before
enforcing any indemnity under this Agreement.
- Governing law and jurisdiction
This Agreement is governed by the laws of Hawaii, United States. Each Party
irrevocably and unconditionally submits to the exclusive jurisdiction of the courts
operating in Hawaii and any courts entitled to hear appeals from those courts and
waives any right to object to proceedings being brought in those courts.
25. Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Additional Costs means any additional costs, expenses,
damages or losses suffered or incurred by the SaaS Provider.
Authorised User means the user(s) permitted to use the SaaS
Services and the content, including Data, generated by, or the output of,
the SaaS Services as a part of the Customer’s services to its
Business Day means a day on which banks are open for
general banking business in Victoria, excluding Saturdays, Sundays and
Business Hours means 9am to 5pm on a Business Day.
Change in Control occurs in respect of a Party if,
after the Effective Date, a person acquires (directly or indirectly):
- shares in that Party conferring alone or in aggregate 50% or more of the
voting or economic interests in that Party on a fully diluted basis;
- the power to control the appointment or dismissal of a majority of the
directors of that Party; or
- the capacity to control the financial and operating policies or
management of that Party.
Claim means any actual, contingent, present or future claim,
demand, action, suit or proceeding for any Liability, restitution, equitable
compensation, account, injunctive relief, specific performance or any other
remedy of whatever nature and however arising, whether direct or indirect,
and whether in contract, tort (including but not limited to negligence) or
Confidential Information includes information or
- is disclosed to the recipient in connection with this Agreement (whether
before or after the Effective Date);
- is prepared or produced under or in connection with this Agreement (whether
before or after the Effective Date); or
- relates to:
- the business, assets or affairs of a Party or any of its
- the business, assets or affairs of a company in a group of
companies to which the Customer belongs, or any client of that
company in the group; or
- the subject matter of, the terms of and/or any transactions
contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form
or marked in writing as “confidential”, and whether it is disclosed
to the recipient or received, acquired, overheard or learnt by the recipient in
any way whatsoever.
Contract Year means a 12 month period commencing on:
(i) the Effective Date; and (ii) each subsequent anniversary of the
Effective Date, of this Agreement during the Term.
Customer Environment means the computing environment of
the Customer including all hardware, software, information technology and
telecommunications services and Systems.
Data means all of the information, documents and other
data provided by the Customer or their Personnel to the SaaS Provider, any
content uploaded by the Customer or Personnel to the SaaS Provider’s
System, or otherwise accessed by the SaaS Provider in providing the
Dispute has the meaning given in clause 20.1(a).
Dispute Notice has the meaning given in clause 20.2(a).
Fee means the fee set out on the Site for the Customer
Force Majeure means any event or circumstances beyond
the reasonable control of a Party including any fire, lightning strike,
flood, earthquake, natural disaster, sabotage, nuclear contamination,
terrorism, war or civil riot that occurs to the extent that it:
- would be unreasonable to expect the affected Party to have planned for,
avoided or minimised the impact of such circumstance by appropriate risk
management, disaster recovery or business resumption plan; and
- results in a Party being unable to perform an obligation under this
Agreement on time.
Initial Term means the initial term set out in the Customer
Insolvency Event means the occurrence of any one or
more of the following events in relation to a Party:
- the Party is or states that it is insolvent or is deemed or presumed to
be insolvent under any applicable laws;
- an application or order is made for the winding up, bankruptcy or
dissolution of the Party or a resolution is passed or any steps are
taken to pass a resolution for its winding up or dissolution;
- an administrator, provisional liquidator, liquidator or person having a
similar or analogous function under the laws of any relevant
jurisdiction is appointed in respect of the Party or any action is taken
to appoint any such person and the action is not stayed, withdrawn or
dismissed within 10 Business Days;
- a controller is appointed in respect of any of the Party’s
- the Party is deregistered under the Corporations Act 2001 (Cth)
or other legislation or notice of its proposed deregistration is given
- a distress, attachment or execution is levied or becomes enforceable
against the Party or any of its property;
- the Party enters into or takes action to enter into an arrangement,
composition or compromise with, or assignment for the benefit of, all or
any class of its creditors or members or a moratorium involving any of
- a receiver or manager (or both) or trustee in bankruptcy is appointed in
respect of the Party or its property;
- a petition for the making of a sequestration order against the estate of
the Party is presented and the petition is not stayed, withdrawn or
dismissed within 10 Business Days or the Party presents a petition
against itself; or
- anything analogous to or of a similar effect to anything described above
under the law of any relevant jurisdiction occurs in respect of the
Intellectual Property Rights means all present and
future rights to:
- registered or unregistered designs, patents, trade marks;
- trade, business, company or domain names;
- know-how, inventions, processes, trade secrets;
- circuit layouts, databases or source codes; and
- any similar rights in any part of the world,
including any application, or right to apply, for registration of, and any
improvements, enhancements or modifications of, the foregoing. Liability means
any expense, charge, cost, liability, loss, damage, claim, demand or
proceeding (whether under statute, contract, equity, tort (including
negligence), indemnity or otherwise), howsoever arising, whether direct or
indirect and/or whether present, unascertained, future or contingent.
Page View means as any time Customer’s account loads
a page (website) that has SaaS Services embedded in it.
Party means a party to this Agreement from time to
time, and Parties means all of them.
Payment Method is by credit card, Wire Transfers, or
Payment Terms means 30 days from the date of the
Personnel means in relation to a Party, any employee,
contractor, officer and agent of that Party.
Products means hardware or software.
Related Body Corporate has the meaning given in section
9 of the Corporations Act 2001 (Cth).
SaaS Licence is defined in clause 3.1.
SaaS Services means the PagePixels Software as a service
described on the Site.
Service Level means any service levels set out on the
Services means the SaaS Services and Support Services,
to be provided or licensed by the SaaS Provider to the Customer on the terms
and conditions set out in this Agreement.
Software means the software used to provide the
Services, and includes any instructions in hard copy or electronic form and
any update, modification or release of any part of that software after this
Agreement is entered into by the Parties.
Support Hours means:
- the hours the SaaS Provider will provide the Support
Services as set out on the Site; or
- if such hours are not specified, AEST Business Hours.
Support Services are set out on the Site.
System means a combination of Products or a combination
of Products and services which are integrated and operate together,
including a network.
Term means the term of this Agreement as set out in
Variation means a change to the SaaS Licence after the
date of this Agreement.
Variation Fee means any variation to the Fee as a
consequence of the Variation.
In this Agreement, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- headings are for convenience only and do not affect interpretation;
- a reference to a clause, paragraph, schedule or annexure is a reference
to a clause, paragraph, schedule or annexure, as the case may be, of
- if any act which must be done under this Agreement is to be done on a
day that is not a Business Day then the act must be done on or by the
next Business Day;
- a reference to any legislation or law includes subordinate legislation
or law and all amendments, consolidations, replacements or re-enactments
from time to time;
- where a word or phrase is defined, its other grammatical forms have a
- a reference to a natural person includes a body corporate, partnership,
joint venture, association, government or statutory body or authority or
other legal entity and vice versa;
- includes and similar words mean includes without limitation;
- no clause will be interpreted to the disadvantage of a Party merely
because that Party drafted the clause or would otherwise benefit from
- a reference to a party to a document includes that party’s
executors, administrators, successors, permitted assigns and persons
substituted by novation from time to time;
- a reference to this Agreement or any other document includes the
document, all schedules and all annexures as novated, amended,
supplemented, varied or replaced from time to time;
- a reference to a covenant, obligation or agreement of two or more
persons binds or benefits them jointly and severally;
- if a period of time is specified and dates from a given day or the day
of an act or event, it is to be calculated exclusive of that day;
- a reference to time is to local time in Hawaii, United States; and
- a reference to $ or dollars refers to American Dollars from
time to time.
For any questions, please contact us at:
Last update: November 15th 2020