Tupcan General Terms

Version effective date: 1 August 2022

The General Terms, all Service Order(s) and any privacy related documents executed by the parties (collectively, this “Agreement”) form a contract between you and Tupcan. This Agreement governs your subscription to, and use of, Tupcan’s website and/or other related applications or services including but not limited to analytics, metrics, consulting and related services (together, the “Services”). The parties have executed this Agreement by signature of their authorized representatives.

In this Agreement, a reference to:

• Tupcan, we, us or our means the relevant Tupcan entity indicated in clause 13.2;
• the Customer, you or your means the entity or person indicated in the relevant section of the Service Order;
• Customer Data means any content or data that you or your Users submit or transfer to Tupcan using the Services (including website data or user input);
• Effective Date means the date that the Customer signs the Service Order;
• Reports means any reports or analysis generated through the Tupcan platform or other output of the Services;
• Service Improvement means work carried out by Tupcan to improve the Services, including work in respect of benchmarking, analytics, insights, health checks, consulting and the development and provision of additional services and functionality; 
• Service Order means an order form that sets forth the Tupcan products that are being licensed by Customer;
• Subscription Term means the length of time set forth on a Service Order for which you agree to use and pay for the Services;
• Term means the length of time beginning on the Effective Date and ending on the last day of a then current Subscription Term (that has not been renewed); and
• Users means any person or entity to whom you provide access to our Services, including any administrators or managers of your account.

1 Services

1.1 TUPCAN SERVICES

During the Term, we will provide you with the worldwide (subject to applicable export and import laws and regulations), non-exclusive, limited, non-transferable (except pursuant to a permitted assignee under these General Terms), royalty-free right for its Users to access and use the Services as described in your Service Order(s). You may order additional services at any time by contacting our Customer Success team. We will invoice you for any additional services you order after the start of the Term at the time those additional Services are ordered. 

1.2 CHANGES TO SERVICES

We continually change and improve our Services. Tupcan may alter the Services at any time without prior notice. We will provide you with reasonable prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. If we do make a change that results in a material decrease in functionality, you may terminate your Subscription under clause 8.3.

1.3 SUSPENSION OF SERVICES

We may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If Tupcan limits or suspends the Services, we will give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for us to give you advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.

We may suspend your access to or use of the Services if Customer is in material breach of this Agreement or any Service Order (including but not limited to Customer’s failure to pay Tupcan the fees for the Services as set forth in a Service Order).

1.4 THIRD PARTY SERVICES

If you use any third party service with the Services (for example, Google Analytics), you acknowledge that third party service may access or use the Customer Data. Tupcan will not be responsible for any act or omission of the third party, including such third party’s use of Customer Data. Tupcan does not warrant or support any such third party service, and you should contact that third party for any issues arising from your use of the third party service.

2 Fees and Payments

2.1 FEES FOR SERVICES

Tupcan Services are billed on a subscription basis (Subscription) and you will be billed as set forth in the Service Order (Billing Cycle).

You agree to pay Tupcan any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those Services in the Service Order. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.

2.2 USAGE INCREASES

If your use of the Services during a Billing Cycle exceeds the limits indicated in the Service Order, we may charge you for the additional usage on a pro rata basis for the remainder of that Billing Cycle as well as any additional Billing Cycles if applicable.

2.3 AUTOMATIC RENEWAL

Your Subscription for any Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of that Service by providing us with written notice during the current Subscription Term for that Service.

Any automatic renewal does not guarantee that the price for Services paid during the previous Subscription Term will remain the same for the next Subscription Term. 

2.4 PAYMENT

Payment terms are set forth on the Service Order (or if not set forth on the Service Order, payment terms are 30 days) and all undisputed payments will be paid by Customer within the time period set forth on the Service Order. You agree to keep your billing and billing contact information current and accurate

2.5 INTEREST

Overdue payments may incur interest at the rate of 10% annually (or the highest rate permitted by law, if less) on the amount overdue, from the date that the relevant payment was due until that payment has been received. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Tupcan in collecting such overdue amounts, except where:

(a) the overdue amounts are due to Tupcan’s billing inaccuracies; or

(b) you have sought to resolve a dispute using the dispute resolution process in clause 13.1 and that process is still active.

2.6 TAXES

Unless stated otherwise in the Service Order, all fees for Services exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by Tupcan, you are responsible for all other taxes or duties payable under applicable law relating to the Services provided under this Agreement, including any penalties or interest. If Tupcan is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with valid evidence that no tax should be invoiced.

3 Data Protection

3.1 PRIVACY

In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement and any applicable law.

Under no circumstances will any entity in the Tupcan group be deemed a data controller with respect to Customer Data under any relevant law or regulation.

3.2 SECURITY

Tupcan will store and process Customer Data in a manner consistent with industry security standards. Tupcan has implemented technical, organisational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorised access to or use of Customer Data.

4 Intellectual Property

4.1 INTELLECTUAL PROPERTY RIGHTS DEFINITION

In this Agreement, Intellectual Property Rights means any and all present and future intellectual and industrial property rights, including any registered or unregistered forms of copyright, designs, patents, trademarks, service marks, domain names, good will and any commercial information. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognised under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.

4.2 CUSTOMER INTELLECTUAL PROPERTY RIGHTS

You retain all ownership and Intellectual Property Rights to Customer Data. Tupcan does not claim ownership over any Customer Data. This Agreement does not grant us any licences or rights to Customer Data except for the licences granted in clauses 4.3 and 4.4 below, or as otherwise required for us to provide the Services to you or your Users.

4.3 LICENCE FOR SERVICES

For the Term of this Agreement, you grant Tupcan a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, or archive Customer Data for the purposes of providing the Services to you as contemplated by this Agreement.

Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorised to) export through the functionality of the Services for your internal purposes (in each case subject to any Confidentiality Notices).

4.4 LICENCE FOR SERVICE IMPROVEMENT

You grant Tupcan a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use Customer Data for the purposes of Service Improvement and creating de-identified aggregated data (“Data Sets”).Data Sets may be made publicly available and may be used after termination of this Agreement provided that such Data Sets cannot directly or indirectly identify the Customer or its Users. 

4.5 CUSTOMER DATA REVIEW

You acknowledge that, in order to ensure compliance with legal obligations, Tupcan may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to us). We may also prevent access to or refuse to display content that we reasonably believe violates the law or this Agreement. However, Tupcan otherwise has no obligations to monitor or review any content submitted to the Services by you or any other person.

4.6 CUSTOMER FEEDBACK

If you provide us with any feedback associated with the Services, Tupcan may use that feedback without any obligation to you.

4.7 CUSTOMER LISTS

Tupcan may identify you (by name and logo) as a Tupcan customer in promotional materials or during promotional events. If you do not want your name and/or logo to be used in this way, please contact our Customer Success team.

4.8 TUPCAN INTELLECTUAL PROPERTY RIGHTS

Nothing in this Agreement or from your use of the Services grants you:

(a) ownership in the Services or the content (including Reports) you access through the Services (other than Customer Data); and

(b) any right to use any Tupcan trademarks or other Intellectual Property Rights contained in our brand identity.

Tupcan will continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant you any other licenses, express or implied, to any of our intellectual property including software, services, or products.

4.9 PLATFORM SUB-PROCESSORS

You agree that Tupcan and the third-party service providers that are utilised by Tupcan to assist in providing the Services to you have the right to access your account and to use, modify, reproduce, distribute, display and disclose Customer Data to the extent necessary to provide or improve or deliver the Services, including, without limitation, in response to your or your Users’ support requests. Tupcan will be responsible for all acts and omissions of its sub-processors.

Any third-party service providers utilised by Tupcan will only be given access to your account and Customer Data as is reasonably necessary to provide the Services and will be subject to: (i) confidentiality obligations which are substantially consistent with the standards described in this Agreement; and (ii) their agreement to comply with the data transfer restrictions applicable to personal information as set forth in this Agreement.

5 Account Management

5.1 ACCOUNT SECURITY AND ACCESS

You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator, manager or user accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that Tupcan is directly responsible for and is not performed in accordance with your instructions), whether or not you authorised that activity. If you become aware of any unauthorised access to, or use of, your account, you should immediately notify our Customer Success team.

5.2 CUSTOMER SYSTEMS

You are responsible for maintaining and updating your operating systems, Internet browsers, anti-virus software, or other software that you or your Users use to access and use the Services.

6 Customer Obligations

6.1 LEGAL COMPLIANCE

You must use the Services in compliance with, and only as permitted by, your internal company rules and any applicable law. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Services in a way that would subject Tupcan to any industry-specific regulations (for example, the Payment Card Industry Data Security Standard). You acknowledge and agree that we are not responsible for any liabilities arising from your violation of this restriction.

6.2 UNACCEPTABLE USES

You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:

(a) misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;

(b) circumvent or attempt to circumvent any limitations that Tupcan imposes on your account (such as any limits in a Service Order);

(c) probe, scan, or test the vulnerability of any Tupcan system or network, unless with prior written authorization of Tupcan;

(d) decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempt to do so;

(f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;

(g) engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. Tupcan will use reasonable efforts to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Tupcan;

(h) use the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;

(i) attempt to circumvent any license, timing or use restrictions that are built into the Services; or

(j) unless authorized in writing by Tupcan, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party.

6.3 USERS

You must:

(a) ensure that your Users comply with clause 6.2;

(b) obtain any consents required from each User to allow you and the administrators or managers of your account to engage in the activities contemplated by this Agreement, as required by applicable law;

(c) obtain any consents required from each User to allow Tupcan to provide the Services, as required by applicable law; and

6.4 SUSPENSION OF USERS

If a User breaches any subsection of clause 6.2 or otherwise uses the Services in a manner that Tupcan reasonably believes will cause Tupcan liability or disrupt others’ use of the Services, then Tupcan may request that you suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Tupcan may suspend or close the applicable User account.

7 Termination

7.1  Termination at end of Subscription Term

If your Service Order states that your Subscription will not auto-renew, then your Subscription will terminate at the end of the Subscription Term for that particular Service with no further action required by you.

7.2 TERMINATION FOR CAUSE

Each party may suspend performance or terminate this Agreement if the other party:

(a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or

(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. 

In addition, Tupcan may immediately terminate this Agreement if: (i) any payment owed by you to Tupcan is more than 30 days overdue; or (ii) Customer breaches clause 6.2.

7.3 TERMINATION FOR MATERIAL DECREASE IN FUNCTIONALITY

If we make a change to the Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Tupcan. Upon receiving notice of termination from you, Tupcan will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.

7.4 CONSEQUENCES OF TERMINATION

If this Agreement is terminated:

(a) by you due to breach by Tupcan, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or

(b) by Tupcan due to breach by you, we will bill you, and you will pay, for any accrued but unbilled fees for the Subscription Term, and you will remain liable to pay any invoices outstanding on the termination date.

In no event will expiration or termination of this Agreement relieve you of any fees payable for the period prior to the date of termination.

7.6 SURVIVAL

The following clauses will survive the termination of this Agreement: 2, 4, 4.3, 4.4, 7, 9, 10, 12 and 13.

8 Warranties

8.1 WARRANTIES

Each party represents and warrants that it:

(a) has full power and authority to enter into this Agreement; and

(b) will comply with all laws and regulations applicable to its provision or use of the Services.

9 Indemnities

9.1 BY CUSTOMER

You will indemnify, defend, and hold harmless Tupcan and its affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third party claim regarding or in connection with:

(a) Customer Data (including claims of Intellectual Property Rights infringement); and

(b) your or your Users breach of clause 6.2.

9.2 BY TUPCAN

Tupcan will indemnify, defend, and hold you harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party; provided however, that Tupcan will not have any obligations or liability under this clause arising from:

(a) use of any Services in a modified form or in combination with materials not furnished or authorized by Tupcan;

(b) any content or data provided by you, your Users, or any third parties; or

(c) designs or specifications provided to Tupcan by Customer that caused such claim.

9.3 POTENTIAL INFRINGEMENT

If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:

(a) obtain the right for you, at our expense, to continue using the Services;

(b) provide a non-infringing functionally equivalent replacement; or

(c) modify the Services so that they no longer infringe.

If we do not believe that the options above are commercially reasonable, then we may suspend or terminate your use of the impacted Services and provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Services.

9.4 INDEMNITY PROCEDURES

A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that:

(a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and

(b) the indemnified party may join in the defence with its own counsel at its own expense.

Nothing in this Agreement will restrict or limit a party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under Clauses 9.1 and 9.2. The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.

10 Disclaimers and Limitations of Liability

10.1 DISCLAIMERS

Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Tupcan provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services or any portion thereof, or regarding any Customer Data or other content associated with your account.

10.2 EXCLUSION OF LIABILITY

To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose, and regardless of the theory of liability.

10.3 LIMITATION OF LIABILITY

To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid or payable by you to Tupcan under this Agreement during the 12 months prior to the event giving rise to the liability or claim.

10.4 EXCEPTIONS TO LIMITATIONS

Clause 10.3 (Limitation of liability) does not apply to each party’s indemnification obligations set forth in clauses 9.1 and 9.2.

11 Amendments

11.1 AGREEMENT AMENDMENTS

Tupcan may amend this Agreement from time to time and the most current version will be posted on Tupcan’s website. If an amendment is material, as determined in Tupcan’s reasonable discretion, we will notify the Customer contact by email or when they next log in to your account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with advance notice of material amendments.

If an amendment has a material adverse impact on the data privacy or security of your Customer Data and you do not agree to the amendment, you may terminate the Agreement by notifying our Customer Success team within 30 days of receiving notice of the amendment or date of publication of the updated version (otherwise, you will have been deemed to have consented to the amendment).

The terms and conditions of the updated version of this Agreement shall apply to all existing Service Orders and new Service Orders following the date of publication of the updated version.

12 Dispute Resolution, Governing Law and Jurisdiction

12.1 DISPUTE RESOLUTION

Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:

(a) give the other party notice of the dispute and its nature;

(b) give the other party the opportunity to remedy any breach of this Agreement within 30 days; and

(c) hold good faith negotiations with the other party to settle the disputed matter.

12.2 LOCATION

(a) the Tupcan party to this Agreement is Tupcan Pty Ltd (ACN 138 600 987);

(b) this Agreement is governed by the laws of Queensland, Australia; and

(c) each party submits to the exclusive jurisdiction of the courts of Queensland, Australia, in relation to any proceedings connected with this Agreement.

13 Other Terms

13.1 ASSIGNMENT

Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.

13.2 ACTIONS BY TUPCAN ENTITIES

The Tupcan entity which is party to this Agreement is determined in accordance with clause 12 of this Agreement. Despite this, any of the Tupcan entities referred to in clause 12.2 may undertake the obligations for and on behalf of the Tupcan contracting entity. Any Tupcan entity which carries out its obligations under this Agreement must comply with the terms of this Agreement.

13.3 ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between you and Tupcan and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. If Customer requests Tupcan to reference a purchase order (PO# ), Customer acknowledges and agrees that any reference to a purchase order in a Service Order or any associated invoice is solely for Customer's convenience in record keeping, and no such reference or any delivery of Services to Customer following receipt of any purchase order will be deemed an acknowledgement of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement this Agreement. The terms and conditions of this Agreement are the exclusive agreement of the Customer and Tupcan with respect to the subject matter of this Agreement and no other terms or conditions will be binding upon Tupcan or otherwise have any force or effect.

13.4 FORCE MAJEURE

Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, pandemic, health emergency or general internet disturbance) that was beyond the party’s reasonable control (except for payment of any money owed).

13.5 INDEPENDENT CONTRACTORS

The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.

13.6 INTERPRETATION

The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.

13.7 NO WAIVER

A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.

13.8 NOTICES

All notices must be in writing and will be deemed given when:

(a) verified by written receipt, if sent by postal mail with verification of receipt service or courier;

(b) received, if sent by mail without verification of receipt; or

(c) when verified by automated receipt or electronic logs if sent by email.

Notices to Tupcan must be sent to Tupcan Pty Ltd, Suite 1201/1 Queens Rd Melbourne VIC 3004, Australia and marked to the attention of the Legal Department, or by email to legal@tupcan.com. Notices to you may be sent to the email address associated with the Customer contact details in the Service Order and/or the administrator of your account. You must keep the contact details associated with your account current and accurate by notifying Tupcan’s Customer Success team when your contact details change. You may grant approvals, permission, extensions, and consents by email.

13.9 PRECEDENCE

To the extent any conflict exists between the documents that constitute this Agreement, the order of precedence will be: Service Order, and General Terms.

13.10 SEVERABILITY

If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.

13.11 THIRD PARTY BENEFICIARIES

There are no third party beneficiaries to this Agreement. Your Users are not third party beneficiaries to your rights under this Agreement.