WhiteCave Customer Terms: These Customer Terms (“Terms”) apply to any professional services delivered by WhiteCave Pty Ltd (“WhiteCave”, “we”, “us”) to the customer (“you”, “Client”, "party") under any Statement of Work (“SOW”) or Agreement (“Agreement”), unless a separate Master Services Agreement is executed.

 

1. Confidentiality:

   1. Both parties agree to maintain the confidentiality of all non-public, proprietary information exchanged in connection with this agreement and not to disclose it to third parties without prior written consent.

2. Privacy, Data Privacy and Security:

   1. WhiteCave will take reasonable and appropriate technical and organisational measures designed to protect Customer Data against unauthorised access, accidental loss or damage, unauthorised destruction and the introduction of viruses, Trojan Horses, worms and other malicious code. The security measure provided by WhiteCave shall be in accordance with good industry practices relating to protection of the type of data typically collected or processed by WhiteCave.

   2. You agree and consent that:

      1. (a) we may use and disclose Personal Information that is made available to us as is reasonably required in order to provide the Professional Services and Deliverables to you including disclosing Personal Information to third parties including our subcontractors and suppliers who provide services to us; and

      2. (b) we may use or disclose Personal Information in accordance with the WhiteCave Privacy Statement (available at http://www.whitecave.com.au/privacy), this section of Our Customer Terms and in accordance with our Agreement with you.

   3. You warrant to us that:

      1. (a) you have taken all steps necessary in accordance with Privacy Laws to permit us and any third parties who provide services to us to collect Personal Information and to use, disclose, store and transfer such Personal Information as contemplated under the clause 2.2; and

      2. (b) you have notified or made the relevant individual aware of the matters, required in relation to notification of the collection of Personal Information under Privacy Laws, in respect of the use and disclosure of that individual’s Personal Information as contemplated under this Section 2.

   4. You indemnify us against any claim, cost, loss or liability (Loss) which may arise naturally (that is, according to the usual course of things) in connection with your breach of the warranty in clause 2.3 above, except to the extent we caused or contributed to such breach. We will take reasonable steps to mitigate our Loss in connection with such a breach.

      1. Both parties agree to comply with the requirements of the Privacy Act 1988 (Cth), including the Australian Privacy Principles (APPs) and the Notifiable Data Breaches (NDB) scheme. Each party must:

         1. Handle Personal Information in accordance with applicable privacy laws;

         2. Take reasonable steps to protect Personal Information from misuse, interference, loss, and from unauthorised access, modification, or disclosure;

         3. Promptly notify the other party of any actual or suspected data breach that may be notifiable under the NDB scheme;

         4. Cooperate in good faith in relation to any investigation, notification, or remediation required under applicable privacy laws;

         5. Ensure that its personnel and subcontractors are aware of and comply with these obligations.

3. Intellectual Property (IP) and Ownership:

   1. All intellectual property owned by each party prior to the commencement of services remains the sole property of that party. Unless otherwise agreed in writing, deliverables created under the SOW are licensed to the client for internal business use only. WhiteCave retains ownership of any pre-existing materials, frameworks, or methodologies used.

4. IP Indemnification:

   1. WhiteCave warrants that Deliverables provided under this Agreement do not knowingly infringe any third-party intellectual property rights.

   2. WhiteCave agrees to indemnify the Client from any third-party claims that the Deliverables infringe intellectual property rights, provided the Client: (a) promptly notifies WhiteCave of the claim, (b) allows WhiteCave to control the defense and settlement, and (c) reasonably cooperates in the defense.

   3. This indemnity does not apply to claims arising from: (i) modifications not made by WhiteCave, (ii) combination with third-party systems not provided or recommended by WhiteCave, (iii) use outside the scope of the Services.

   4. If a claim is made, WhiteCave may, at its discretion, (a) replace or modify the Deliverables, or (b) refund a pro-rata portion of fees paid.

5. Limitation of Liability:

   1. WhiteCave’s liability under this agreement is limited to the total fees paid by the client for the services provided under the applicable SOW. In no event shall either party be liable for indirect, special, or consequential damages.

   2. As such, except for a party’s indemnification obligations or the misappropriation of either party’s intellectual property rights (the “exclusions”), in no event will either party, including WhiteCave’s providers, be liable for any incidental, indirect, punitive, exemplary, special or consequential damages, or for costs of procurement of substitute offerings, lost profits, loss of business or business opportunities, loss of goodwill, reputational damages, work stoppage, business interruption, or lost savings or revenues of any kind, or for lost data, damage to other software, computer failure or malfunction or downtime or third party claims. Except for the exclusions, fraud or willful misconduct, each party’s, including WhiteCave’s providers, total and cumulative liability for all claims under this agreement, or for breach of this agreement, including without limitation those relating to the offerings, however caused and regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise shall not exceed the aggregate amounts received by WhiteCave for the applicable offering during the twelve (12) month period immediately prior to the date the cause of action arose. The limitations set forth in this section 5 shall apply even if a party and its related parties have been advised of the possibility of such damages.

   3. Nothing in this Agreement excludes, restricts or modifies any non‑excludable consumer guarantee, right or remedy under the ACL or any similar law.

6. Payment, Fees, Invoicing and Taxes:

   1. Unless otherwise stated, all fees and charges set out in the Agreement are: (a) denominated in Australian dollars ($AUD); and (b) GST exclusive.

   2. Unless otherwise stated in the SOW, invoices are issued upfront and payable within 14 days. Delayed payments may result in paused service delivery.

   3. Fees for Subscriptions will be invoiced upon execution of the Quote, unless otherwise agreed by the Parties in signed writing. Professional Services will be invoiced at the time such Professional Services are ordered, unless otherwise designated in the applicable Professional Services description, Quote or SOW. All pre-paid Professional Services shall be used within three (3) months from the date ordered, and any Professional Services not used are forfeited. In the event Customer procures an Offering from WhiteCave directly, Customer will pay all such Fees to WhiteCave net thirty (30) days from the date of the applicable invoice.

   4. WhiteCave, or WhiteCave’s Partner, as the case may be, will issue to Customer a Quote(s). Each Quote shall be deemed to incorporate the terms of this Agreement. Payment terms shall be as set forth in the Quote.

   5. All Fees are exclusive of any taxes, including sales, use, excise, value added, withholding taxes, customs duties and tariffs now or hereafter claimed or imposed by any governmental authority, and are the net amounts to be actually received by WhiteCave after payment of all such taxes, duties or charges all of which shall be paid by Customer and which are in addition to the amounts to be actually received by WhiteCave. In the event WhiteCave is required to pay any such tax, duty or charge, Customer will promptly reimburse WhiteCave for any such actual fees on an after-tax basis. All Fees are non-refundable and shall not be subject to any offsets or reductions (except as otherwise specifically provided herein). Customer is responsible for providing any applicable tax exemption certificates.

7. Termination:

   1. This Agreement will continue in full force and effect so long as there is an active Offering, subject to early termination as provided in this Section.

   2. In addition to a party’s other rights under the Agreement, if a party materially breaches the Agreement and does not remedy that breach within 30 days of receiving a notice to do so, then the other party may cancel the affected Professional Services (in whole or in part).

   3. You may cancel the Professional Services (in whole or in part) at any time by giving us not less than 30 calendar days’ prior written notice (or such other notice as may be specified in the Agreement). We must cease work in accordance with that notice.

   4. Upon cancelation of the Professional Services by us or by you (other than for our material breach or failure to continue providing the service in the event included under clause 8.3) you must pay to us the following early termination charges (together, the Early Termination Charge): (a) for each time and materials component specified under the Agreement: (i) the fees for all Professional Services and Deliverables supplied before the date of cancellation of the Professional Services; plus (ii) the remainder of the price of any Deliverables which have been delivered prior to the cancellation of the Professional Services; plus (iii) an amount equal to the actual costs and expenses that we have incurred or committed to in anticipation of providing the Professional Services and Deliverables to you and that cannot be reasonably avoided by us as a result of the cancellation; and (b) for each fixed price component specified under the Agreement: (i) any unpaid portion of the fixed price fee; plus (ii) the remainder of the price of any Deliverables which have been delivered prior to cancellation of the Professional Services; plus (iii) equal to the actual costs and expenses that we have incurred or committed to in anticipation of providing the Professional Services and Deliverables to you and that cannot be reasonably avoided by us as a result of the cancellation, which will not exceed an amount.

8. Third Parties:

   1. Unless otherwise agreed in the Agreement: (a) the Professional Services and any Deliverables are provided for your benefit only; (b) you must not use the Professional Services for a third party’s benefit or allow a third party to use them; and (c) we are not responsible for the use by a third party or use by you for the benefit of a third party of the Professional Services or any Deliverables.

   2. You indemnify us for any loss, damage, liability, costs or expenses (Loss) we incur and that arise naturally (that is, according to the usual course of things) as a result of any claim against us in connection with: (a) any use of the Professional Services or Deliverables by a third party to which you provide access to or make available the Professional Services or Deliverables (unless such use is expressly permitted in the Agreement); or (b) any use by you for the benefit of a third party of the Professional Services or any Deliverables (unless such use is expressly permitted in the Agreement), except to the extent the events in paragraph 8.2(a) or 8.2(b) above are caused or contributed to by us. We will take reasonable steps to mitigate our Loss incurred as a result of the events in paragraph 8.2(a) or 8.2(b) (as applicable).

   3. You acknowledge that we may purchase some components of the Professional Services or Deliverables from third party suppliers. If one of our third party suppliers suspends, cancels or terminates a service that we rely on to provide you with a Professional Service or Deliverable, we may: (a) replace or modify that Professional Service or Deliverable; (b) suspend or cancel that Professional Service or Deliverable; (c) terminate the affected part of the Agreement; or (d) terminate any affected Statement(s) of Work.

   4. If we exercise our rights under clause 8.3, we will give you as much notice as is reasonably practicable in the circumstances and in the event of: (a) replacement or modification of the Professional Service or Deliverable, if the replacement or modification has more than a minor detrimental impact on you, you may cancel the Professional Service and no early termination fees will apply; and OUR CUSTOMER TERMS PROFESSIONAL SERVICES General (b) cancellation or termination, no early termination fees will apply.

9. Warranties and Disclaimers:

   1. WhiteCave warrants that during the Subscription Period, the Offerings will perform, in all material respects, in accordance with the Specifications. Customer’s sole and exclusive remedy and WhiteCave’s entire liability under this limited warranty will be for WhiteCave, at its option and expense, to repair or replace the non-conforming component of an Offering so that the non-conforming component of the Offering performs, in all material respects, in accordance with the Specifications. If WhiteCave determines that it is unable to repair or replace such non-conforming component, Customer may terminate the Subscription for the applicable Offering and WhiteCave shall reimburse Customer on a pro-rata basis the prepaid Fees for the applicable Offering for the remainder of the Subscription Period from the date of termination.

   2. WhiteCave warrants that any Services (as applicable) will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Customer must notify WhiteCave of any warranty claim within thirty (30) days from the date performed. Customer’s sole and exclusive remedy and WhiteCave’s entire liability for its breach of this warranty will be for WhiteCave, at its option and expense, to use commercially reasonable efforts to re-perform the non-conforming Services, or refund a portion of the pre-paid Fees attributable to the non-conforming Services.

   3. The above warranties shall not apply (i) in connection with any alteration, modification or action taken in connection with an Offering by anyone other than WhiteCave, (ii) for damages, malfunctions, or service failures which are caused by Customer’s or its third party products or systems, (ii) the combination or integration of an Offering with other products, including any systems of the Customer, other than in accordance with the Specifications, (iv) failure of Customer or any third party to install the latest version of the Offering or use an applicable update, (v) failure to follow WhiteCave’s installation, operation, or maintenance instructions, (vi) use of Offerings in violation of the Specifications (vii) negligence or willful misconduct by Customer or Users, or (viii) any force majeure instance as defined below. Customer will be required to pay, at WhiteCave’s then current rates, for any time invested and/or work performed by WhiteCave to investigate and/or remedy any issues which results from the circumstances set out in this Section.

   4. Customer warrants that (i) it will not introduce into the Cloud Services any virus, worm, Trojan horse, time bomb, or other malicious or harmful code designed to affect the operation of the Cloud Services; and (ii) the performance of its obligations hereunder and delivery and use of the Cloud Services and On-Premise Software will not violate any applicable laws or regulations.

   5. Customer understands that WhiteCave does not and cannot control the flow of data to or from WhiteCave’s network and other portions of the internet, and accordingly WhiteCave disclaims any and all warranties and liabilities resulting from or related to a failure in the performance of internet services provided or controlled by a third party other than any contractor or agent of WhiteCave hereunder. Customer understands and agrees that WhiteCave does not guarantee or warrant that it will find, locate, discover or remediate all of customer’s or its affiliates’ system threats, vulnerabilities, malware, and malicious software, and customer and its affiliates will not hold WhiteCave responsible therefor. The express warranties set forth in this section 9 constitute the only warranties with respect to the offerings. WhiteCave makes and customer receives no other representation or warranty of any kind, whether express, implied or statutory with respect to the offerings. WhiteCave expressly disclaims any and all promises, representations and warranties, express, implied or statutory, including without limitation, warranties of noninfringement, title, merchantability, fitness for a particular purpose, error free operation or nonintrusion due to hacking or other similar means of unauthorised access, to the fullest extent permitted by applicable law.

10. Governing Law:

    1. These terms are governed by the laws of Victoria, Australia. Any disputes will be subject to the jurisdiction of the courts of Victoria.

11. Definitions:

    1. “Cloud Services” shall mean the online, standard web-based application services made generally available by WhiteCave on a subscription basis and identified on the applicable Order or Quote. “WhiteCave Data” means all data and information that WhiteCave provides to Customer, including but not limited to the Software, technical information, Offerings, APIs, any Confidential Information of WhiteCave and any third party software or information related to services included in the Offerings, and any data or contextual or correlative data generated by the Offerings and/or threat intelligence data. As between Customer and WhiteCave, WhiteCave retains all right, title and interest in and to WhiteCave Data. For the avoidance of doubt, WhiteCave Data does not include Customer Data. “Customer Data” includes all Customer-specific or Customer-identifiable data that Customer provides or makes available to WhiteCave through the Offering. As between Customer and WhiteCave, Customer retains all right, title and interest in and to Customer Data. “Documentation” means any and all documentation and material pertaining to use and technical descriptions of the Offerings provided or made available to Customer by WhiteCave, including the Specifications, release notes, user guides, instructions and “help pages,” which may be updated from time to time. For the avoidance of doubt, Documentation does not include any marketing materials or WhiteCave logos or trademarks, use of which is subject to WhiteCave’s external brand guidelines. “Fee” or “Fees” means the amounts payable for the Offerings to WhiteCave or Partner, as applicable. “Internal Use” means access or use solely for Customer and its Affiliates for its own internal security purposes. “Offering” means any software and services provided by WhiteCave pursuant to an Order or a Quote, including Professional Services, Cloud Services and/or Software, and any related Documentation. “Order” means any purchase order or other ordering document accepted by WhiteCave that identifies the Offering ordered by Customer. “Partner” means a reseller, distributor, managed services provider or any third-party entity authorised by WhiteCave to market Offerings to end user customers. “Products” means Cloud Services and Software. “Professional Services” means those professional services that may be provided by WhiteCave, or on its behalf, as further described at https://www.whitecave.com.au, which may be amended from time to time, and pursuant to the Quote, or if applicable, a SOW executed by both parties, but do not include Cloud Services. “Quote” means one or more written quotation documents provided by WhiteCave or a Partner, as applicable, to Customer, which specifies the details for the Order, including the Offering, number of Units, Subscription Period, pricing and renewal language, if any. “Sensor” means a software component that is installed on the endpoint that communicates with the Product console. “Services” means Cloud Services, Professional Services, Support and Maintenance and any other services which may be offered by WhiteCave from time to time. “Specifications” means the technical requirements and functional description of the Software, Cloud Services or Professional Services in the Documentation. “Software” means the sensor software installed on the endpoint, in the Customer’s environment or any on-premise software and/or software component of an Offering. “SOW” means a statement of work which sets forth the details of a Professional Services engagement and is signed by both Parties. “Subscription” means the right to use an Offering during each Subscription Period. “Subscription Period” means each period of time the Customer is authorised to use the Offering(s), as specified in the applicable Quote, including any renewals of such period. “Unit” means a specific unit utilised for purposes of calculating the number of licenses and associated Fees as specified for the applicable Offering, which may include a computing device that is supported by a Sensor, including mobile device, desktop, server, laptop, workstations, virtual desktops, or other unit such as docker host, Kubernetes node, employee/User count (as may be determined by Active Directory or other method) or other unit as specified in the Quote or Documentation for the applicable Offering. “User” means Customer’s (or, as applicable, Customer’s Affiliates’) employees, independent contractors, agents, or other representatives who use or have access to the Offerings solely on behalf of and for the benefit of Customer (or Customer’s Affiliates) as authorised under this Agreement.